THE  PROSECUTION  OF  JESUS 

Its  Date,  History  and  Legality 


THE  PROSECUTION  OF  JESUS 

ITS  DATE,  HISTORY  AND  LEGALITY 


BY 

RICHARD  WELLINGTON  HUSBAND 

PROFESSOR  OF  THE  CLASSICAL  LANGUAGES 
IN   DARTMOUTH   COLLEGE 


PRINCETON  UNIVERSITY  PRESS 
PRINCETON 

LONDON:  HUMPHREY  MILFORD 

OXFORD  UNIVERSITY  PRESS 

1916 


Copyright,  1916,  by 
PRINCETON  UNIVERSITY  PRESS 


Published,  November,  1916 


PREFACE 

For  several  years  I  have  been  engaged  in  a 
study  of  the  more  important  criminal  cases  in 
which  Cicero  appeared  as  attorney.  One  of 
these,  that  against  Verres,  led  immediately  to  a 
consideration  of  criminal  procedure  in  the  Ro- 
man provinces,  but  I  found  that  the  books  gave 
a  very  inadequate  treatment  of  the  subject.  Since 
the  story  of  the  prosecution  of  Jesus  was  more 
fully  reported  by  ancient  writers  than  was  any 
other  provincial  case,  I  felt  that  it  might  prove 
useful  in  assisting  me  to  understand  some  of  the 
charges  made  against  Verres  and  other  gov- 
ernors of  provinces.  I  soon  became  convinced 
that  the  approach  to  the  study  of  the  trial  of 
Jesus  should  be  made  through  the  Roman,  and 
not,  as  is  commonly  done,  through  the  Hebrew 
criminal  law.  So,  naturally,  I  would  reject  the 
current  opinion  that  Jesus  was  formally  tried  by 
the  Sanhedrin  for  an  alleged  offense  against  the 
Hebrew  criminal  code. 

It  has  always  been  recognized,  however,  that 
the  trial  of  Jesus  before  Pilate  was  a  case  in 
iii 

2020075 


iv  PREFACE 

a  Roman  court,  and  I  regard  this  as  the  only 
trial  that  occurred,  and  hold  that  the  hearing  be- 
fore the  Sanhedrin  could  have  been  nothing  else 
than  Grand  Jury  proceedings.  But  much  labor 
has  been  uselessly  expended  by  scholars  in  an 
attempt  to  show  that  Pilate  should  have  con- 
ducted the  case  as  a  similar  case  would  have  been 
conducted  in  Rome  itself.  Information  that  has 
always  been  available  should  have  warned  writers 
against  this  hypothesis,  and  the  appearance  in 
1912  of  the  study  of  papyri  by  Mitteis  and 
Wilcken  should  have  disposed  of  it  for  all  time. 
Many  special  studies  became  necessary  as  the 
work  progressed,  of  which  I  may  mention  the 
question  of  the  persons  who  arrested  Jesus,  the 
legality  of  the  pardoning  of  Barabbas,  and,  per- 
haps the  most  important,  the  date  of  the  trial 
and  crucifixion.  Careful  use  of  evidence  hitherto 
unnoticed  has  led  me  to  place  the  crucifixion 
three  years  later  than  the  date  ordinarily 
adopted.  Through  the  kindness  of  Professor 
F.  G.  Moore,  Secretary  of  the  American  Philo- 
logical Association,  I  am  permitted  to  give  here 
an  abstract  of  my  paper  on  this  subject  appear- 
ing in  the  current  issue  of  the  Transactions  of 
the  Association.  For  the  computations  upon 


PREFACE  v 

which  the  tables  in  Chapter  III  are  based,  I  am 
indebted  to  Professor  J.  M.  Poor  of  the  depart- 
ment of  Astronomy  in  Dartmouth  College. 

The  manuscript  has  been  read  throughout  by 
Professor  David  Magie,  Jr.,  of  Princeton  Uni- 
versity, and  has  been  greatly  improved  by  his 
valuable  criticisms  and  suggestions.  Professor 
Edward  Capps  of  Princeton  University  first 
suggested  this  as  a  separate  study,  and  has  gen- 
erously contributed  to  it  by  discussion,  corre- 
spondence, and  reading  of  the  manuscript.  I 
wish  also  to  express  my  appreciation  of  the  help- 
ful courtesy  of  the  officers  of  various  theological, 
academic  and  public  libraries,  and  particularly 
those  of  Princeton  University  and  Princeton 
Theological  Seminary. 

R.  W.  HUSBAND 
Hanover,  N.  H. 

August,  1916 


CONTENTS 

Preface iii 

I    The  Problem 1 

II    Legal  Rights   of  the  Jews   Under 

Roman  Supremacy 16 

III    The  Date  of  the  Trial 34 

IV   Jesus  Arrested  by  the  Jewish  Au- 
thorities       70 

V    The  Proceedings  Before  the  Sanhe- 

drin 102 

VI    Criminal  Trials  in  the  Roman  Prov- 
inces     137 

VII    The    Gospel    Text    Describing   the 

Hearing  Before  the  Sanhedrin.  .   182 
VIII    The  Criminal  Charge  Against  Jesus  209 

IX    The  Trial  in  the  Roman  Court 234 

Conclusions 279 

Bibliography   283 

Index  .  .   297 


Vll 


CHAPTER  I 

THE  PROBLEM 

In  the  year  70  B.  C.,  Cicero,  at  the  request  of 
the  Sicilians,  prosecuted  Verres  for  maladminis- 
tration during  his  term  of  three  years  as  governor 
of  Sicily.  The  charge  which  Cicero  urged  with 
the  greatest  insistence,  and  with  the  greatest  ap- 
parent sincerity,  was  that  Verres  had  crucified 
a  Roman  citizen  without  allowing  him  the  privi- 
lege of  appeal  from  the  decision  of  the  provincial 
governor  to  the  courts  at  Rome,  or  to  an  assem- 
bly there.  The  horror  of  the  situation  was  ag- 
gravated by  the  fact  that,  after  this  Roman 
citizen  had  proclaimed  his  citizenship,  Verres  had 
the  cross  erected  near  the  Straits  of  Messina,  and 
caused  his  victim  to  face  the  shore  of  Italy,  as  if 
to  taunt  him  with  his  helplessness,  despite  his 
being  a  Roman.  Some  modern  scholars  are  of 
the  opinion  that  Quintus  Cicero  had  one  Roman 
citizen,  or  possibly  two,  crucified  in  his  province 
of  Mysia.  The  question  has  been  much  debated 
whether  one  possessed  of  the  full  Roman  fran- 
chise, but  resident  in  a  province,  had  any  right 
of  appeal  as  against  a  decision  made  by  the  pro- 


2  THE  PROSECUTION  OF  JESUS 

vincial  governor.  It  can  be  stated  with  assur- 
ance, however,  that  a  provincial,  if  he  did  not 
possess  Roman  citizenship,  had  no  immediate 
opportunity  of  redress  when  an  injustice  on  the 
part  of  the  governor  was  assumed  to  have  oc- 
curred. The  one  path  open  to  him  was  the 
lengthy  and  expensive  method  of  prosecution 
after  the  expiration  of  the  governor's  term  of 
office,  when  it  might  easily  be  too  late  to  rectify 
the  mischief.  This  means  that  he  had  no  power 
to  stay  the  execution  of  a  sentence,  so  that  it 
might  well  happen  that  a  capital  sentence  would 
be  pronounced,  and  the  penalty  inflicted,  but  the 
victim  would  have  no  opportunity  of  securing  a 
hearing  of  his  case  before  a  higher  tribunal  than 
that  of  the  local  magistrate.  When  we  recall 
that  the  governors  were  frequently  appointed  for 
their  military  rather  than  judicial  qualities,  it  is 
easy  to  understand  that  a  miscarriage  of  justice 
could  often  occur,  even  though  the  governor 
sought  to  be  fair  and  equitable. 

Now  it  happens  that  the  two  Roman  subjects 
living  in  a  province,  who  came  into  legal  contact 
with  the  provincial  authorities,  and  whose  lives 
are  most  fully  reported,  are  Jesus  and  Paul. 
Jesus  was  not  a  Roman  citizen,  while  Paul  was. 
One  of  them,  the  Roman  citizen,  challenged  the 
jurisdiction  of  the  provincial  officials,  on  the 
ground  that  his  citizenship  guaranteed  him  a 
hearing  in  Rome,  if  he  demanded  it.  The  other 


THE  PROBLEM  3 

was  not  so  protected,  and  was  forced  to  accept 
such  treatment  as  might  be  accorded  him.  Herein 
lies  the  fundamental  distinction  between  the  two 
cases.  Another  essential  difference  consists  in 
the  fact  that  the  penalty  inflicted  upon  the  two 
for  the  same  offense  might  not  be  the  same,  for 
Roman  legislation  had  prescribed  one  series  of 
penalties  for  crimes  committed  by  Roman  citi- 
zens, and  another  series  for  the  same  crimes  when 
committed  by  members  of  subject  states. 

It  is  further  to  be  noticed  that,  thanks  to  the 
careful  investigations  of  Josephus  and  Philo,  and 
owing  to  our  possession  of  the  New  Testament 
and  the  Talmud,  we  have  more  full  and  accurate 
information  about  the  social,  political  and  legal 
conditions  in  Judea  than  we  have  about  those  in 
any  other  outlying  portion  of  the  Roman  do- 
minions. Josephus  and  Philo  were  both  Jews, 
and  it  might  be  suspected  that  they  represent  the 
supremacy  of  the  Romans  as  bearing  more 
severely  upon  the  Jews  than  was  actually  the 
case.  But,  quite  on  the  contrary,  many  hold  that 
Josephus  may  have  minimized  somewhat  the  of- 
fenses of  the  Romans  in  the  province,  in  order 
to  avoid  the  displeasure  of  the  Flavians  under 
whom  he  lived  in  Rome  and  composed  his  his- 
tories. But  this  could  not  well  apply  to  the 
period  from  Pompey's  conquest  to  the  reign  of 
Nero,  for  no  emperor  could  possibly  take  excep- 
tion to  the  truth  regarding  that  comparatively 


4  THE  PROSECUTION  OF  JESUS 

early  period,  and  there  seems  to  be  ample  evi- 
dence that  Josephus  endeavored  to  give  an  ac- 
curate picture  of  the  events  of  that  century. 
Otherwise  he  would  not  have  given  so  harsh  a 
portrayal  of  Herod,  officially  appointed  client 
king  by  senatorial  enactment,  nor  of  Pilate,  a 
governor  who  received  his  position  directly  from 
Tiberius. 

There  has  been  gradually  evolved  a  kind  of 
traditional  view  of  the  history  of  the  trial  of 
Jesus,  found  in  many  special  studies  of  the  case, 
or  in  histories  of  the  life  of  Christ,  or  in  com- 
mentaries on  the  New  Testament.  This  view 
may  be  stated  briefly  in  the  following  way.  It 
is  usually  argued  that  the  death  of  Christ  oc- 
curred in  A.  D.  30,  when  he  was  about  thirty-four 
years  of  age.  There  is  an  ancient  tradition  in 
the  church  that  this  was  the  year  in  which  the 
crucifixion  took  place.  This  conclusion  is 
reached  also  from  certain  indications  in  the 
Gospels,  especially  that  in  which  the  age  of  Jesus 
at  the  beginning  of  the  ministry  is  given. 

The  arrest  of  Jesus  occurred  in  the  Garden 
of  Gethsemane  one  Thursday  night  after  the  last 
supper  with  the  disciples.  The  traditional  view 
maintains  that  he  was  illegally  arrested  by  a 
mob  sent  by  the  chief  priests  for  that  purpose, 
but  that  the  arresting  party  was  not  legally 
qualified  to  make  an  arrest.  Some  scholars  think 
that  a  cohort  of  Roman  soldiers  assisted  the  mob 


THE  PROBLEM  5 

in  making  the  arrest.  After  the  arrest  Jesus 
was  taken  to  the  house  of  Annas,  a  former  high 
priest,  by  whom  he  was  examined  privately. 
Then  he  was  removed  to  the  house  of  Caiaphas, 
the  present  high  priest,  where  he  was  tried  by 
the  Sanhedrin  for  an  alleged  violation  of  the 
Hebrew  criminal  code.  It  is  generally  main- 
tained that  the  trial  was  quite  illegal,  inasmuch 
as  it  was  held  at  night,  the  prisoner  was  not  al- 
lowed the  privilege  of  making  a  proper  defense, 
the  evidence  against  him  was  perjured  and  incon- 
sistent, and  the  verdict  did  not  result  even  from 
the  evidence  offered.  Nevertheless  the  Sanhedrin 
pronounced  him  guilty  of  blasphemy,  because 
he  called  himself  the  Son  of  God.  But  Judea 
was  now  a  Roman  province,  and  the  Roman  gov- 
ernment no  longer  allowed  the  Sanhedrin  to  in- 
flict capital  punishment.  Every  capital  sentence 
pronounced  by  the  native  court  required  the  rati- 
fication of  the  governor,  and,  if  this  was  given, 
the  Romans  themselves  carried  the  sentence  into 
effect. 

But  the  Sanhedrin  knew  that  Pilate  would  not 
seriously  consider  a  verdict  on  an  ecclesiastical 
charge,  and  deliberately  falsified  their  findings. 
Out  of  the  confession  of  Jesus  that  he  was  the 
Son  of  God  they  constructed  a  new  accusation, 
that  of  treason  against  the  Roman  Empire,  for 
the  confession  was  equivalent  to  a  claim  that  he 
was  the  Messiah,  and  the  Messiah  was  to  be  a 


6  THE  PROSECUTION  OF  JESUS 

temporal  king.  They  hoped  that  Pilate  would 
merely  read  their  indictment  and  confirm  their 
verdict  without  taking  the  trouble  to  investigate 
the  evidence  that  had  been  adduced  against  him. 
But  in  this  they  were  mistaken,  for  Pilate  in- 
sisted upon  knowing  just  what  had  induced  them 
to  pronounce  Jesus  guilty.  It  is  universally  said 
that  when  Pilate  had  heard  the  indictment,  and 
had  questioned  the  accused,  he  rendered  a  verdict 
of  not  guilty.  The  proceedings  then  degenerated 
into  violent  scenes  of  mob  influence  upon  the 
court,  in  which  Pilate  was  threatened  with  im- 
peachment before  the  emperor  unless  he  acceded 
to  the  wishes  of  his  subjects,  as  represented  by 
the  Sanhedrin.  Pilate  thereupon  became  fright- 
ened and,  in  order  to  avoid  possible  trouble  with 
the  Jewish  people,  commanded  that  Jesus  be 
crucified. 

The  story  of  the  trial  of  Jesus  has  been  care- 
fully examined  many  times,  from  the  appearance 
of  the  first  edition  of  Salvador's  history  of  the 
institutions  of  Moses,  published  in  1829,  down 
to  the  present  year,  when  books  and  articles  still 
frequently  appear  in  the  press.  The  ancient 
writings  on  the  Jewish  criminal  law  have  been 
scrutinized  with  the  utmost  care  and  eagerness, 
and  each  stage  in  the  proceedings  against  Jesus 
has  been  subjected  to  a  severe  comparison  with 
the  system  of  legal  procedure  demanded  in  the 
Jewish  criminal  courts.  So,  too,  the  findings  of 


THE  PROBLEM  7 

the  Jewish  authorities  in  the  examination  of  the 
charges  made  against  Jesus  have  been  critically 
investigated  in  the  light  of  the  definitions  of  the 
crimes  of  blasphemy  and  false  prophecy  con- 
tained in  the  Mosaic  code  and  in  Talmudic  litera- 
ture. From  this  point  of  view  it  does  not  appear 
that,  for  the  present,  any  advance  can  be  made 
in  an  analysis  of  the  procedure  or  the  legality 
of  the  trial  of  Jesus.  But  even  that  form  of 
evidence  is,  in  a  measure,  unsatisfactory,  for  the 
criminal  code  of  Moses  had  been  modified  in 
some  particulars,  and  the  rules  of  procedure 
enunciated  in  the  Talmud  may  not  have  been 
evolved  so  early  as  the  time  of  Christ.  Conse- 
quently there  always  remains  a  feeling  of  doubt 
and  uncertainty  about  the  validity  of  the  con- 
clusions reached,  even  after  one  has  investigated 
carefully  the  Hebrew  expositions  of  the  criminal 
law,  and  has  attempted  to  apply  the  Hebrew  law 
and  rules  of  procedure  to  the  trial  of  Jesus. 

But  in  other  respects  the  published  treatments 
of  the  case  are  less  thorough  and  reliable.  There 
are  three  serious  defects  noticeable  in  many  of 
the  books  and  monographs  on  the  subject.  The 
first  of  these  is  the  failure  on  the  part  of  many 
writers  to  show  an  adequate  knowledge  of  many 
essential  facts  of  the  Roman  criminal  law  and 
of  the  administration  of  the  Roman  provinces. 
The  great  majority  of  writers  are  agreed  that 
Jesus  was  finally  condemned  for  an  offense 


8  THE  PROSECUTION  OF  JESUS 

against  the  Roman  criminal  law,  and  yet  many 
of  the  books  fail  to  give  a  clear  definition  of  the 
crime  with  which  he  was  charged.  Even  those 
who  do  attempt  to  show  the  application  of  Ro- 
man legal  principles  to  the  case  of  Jesus  are 
too  likely  to  adopt  the  doctrines  set  forth  in  the 
Digest  and  the  Codex  of  Justinian,  on  the  as- 
sumption that  the  criminal  law  and  the  provincial 
administration  of  the  time  of  Justinian's  codifica- 
tion were  exactly  those  which  were  in  force  five 
centuries  earlier.  This  belief  can  be  shown  to 
be  erroneous  in  several  very  important  particu- 
lars. A  striking  instance  of  this  is  the  all  too 
common  misunderstanding  of  the  position  of 
Pilate  in  Judea,  and  of  the  nature  of  his  func- 
tions there.  An  error  of  still  greater  consequence 
is  the  belief,  obviously  held  by  many  writers  on 
this  topic,  that  our  knowledge  of  the  extent  and 
method  of  the  application  of  the  criminal  law 
and  of  criminal  procedure  to  the  provinces  is 
greater  than  it  really  is.  We  know  in  consider- 
able detail  the  procedure  required  in  criminal 
cases  tried  in  Rome  during  that  period,  but  we 
have  only  two  cases  reported  from  the  provinces 
in  any  degree  of  fulness.  These  are  the  cases  of 
Jesus  and  Paul,  and  even  they  are  reported  by 
men  who  were  not  thoroughly  versed  in  either 
Jewish  or  Roman  law.  It  is  worthy  of  note  that 
in  the  standard  works  on  the  subject  of  Roman 
legal  procedure,  those  of  Geib,  Zumpt  and 


THE  PROBLEM  9 

Greenidge,  the  procedure  in  provincial  cases  is 
not  treated,  for  the  very  adequate  reason  that 
information  on  that  topic  is  exceedingly  scanty. 
But  the  omission  is  indicative  of  the  belief,  shared 
by  all  students  of  the  criminal  law  system  of  the 
Romans,  that  the  law  and  the  procedure  adopted 
in  the  provinces  differed  decidedly  from  those  in 
use  in  Rome.  For  this  reason  it  is  of  no  advan- 
tage whatever  to  make  a  comparison  between  the 
proceedings  before  Pilate  in  the  trial  of  Jesus 
and  the  procedure  in  criminal  cases  at  Rome, 
when  the  purpose  is  to  determine  the  validity  or 
legality  of  the  conviction  of  Jesus.  The  in- 
formation concerning  the  provincial  law  and 
procedure  which  has  come  to  light  from  the  dis- 
coveries of  papyri  in  Egypt,  and  was  published 
in  part  by  Wenger  in  1902  and  more  fully  by 
Mitteis  and  Wilcken  in  1912,  makes  decidedly 
against  the  view  that  the  Romans  attempted  to 
use  their  own  Roman  procedure  outside  Italy. 

The  second  great  defect  in  many  of  the  treat- 
ments of  the  trial  consists  in  the  failure  to  give 
adequate  recognition  to  one  of  the  most  sound 
principles  of  Roman  jurisprudence.  This  is  the 
doctrine  that  a  person  may  not  twice  be  put  in 
jeopardy  for  the  same  offense.  This  principle 
was  fundamental  in  the  opinion  of  the  great 
Roman  jurists,  and  from  them  it  has  become  a 
guiding  principle  in  the  jurisprudence  of  all 
modern  civilized  nations.  It  has  indeed  been 


10  THE  PROSECUTION  OF  JESUS 

recognized  in  a  very  few  of  the  books  on  the  his- 
tory of  the  trial  of  Jesus,  but  even  in  them  the 
principle  has  not  been  followed  to  the  only  con- 
clusion that  seems  logical.  One  who  holds  this 
doctrine  steadily  in  mind  will  not  seek  to  main- 
tain that  Jesus  was  formally  tried  before  the 
Jewish  court  and  was  then  re-tried  in  a  Roman 
tribunal  on  the  same  charge.  Nor  is  it  material 
whether  the  first  trial  terminated  in  conviction 
or  acquittal,  the  principle  was  equally  applicable. 
If  it  is  held  that  the  Jewish  court  had  jurisdic- 
tion in  the  case,  and  exercised  its  jurisdiction,  it 
follows  of  necessity  that  the  function  of  the 
Roman  court  was  either  merely  confirmatory  or 
appellate.  But  that  the  two  courts  should  have 
concurrent  jurisdiction,  and  that  a  person  should 
be  tried  in  both  courts  for  the  same  offense,  would 
be  an  anomaly  in  Roman  jurisprudence  that 
would  be  abhorrent  to  the  logical  principles  upon 
which  the  whole  of  that  fabric  was  constructed. 
Some  writers  have  apparently  surmounted  this 
obstacle  by  juggling  with  the  Gospel  narratives 
to  make  it  appear  that  Jesus  was  tried  on  one 
charge  by  the  Jewish  court  and  on  a  totally  dif- 
ferent charge  by  the  Roman  court.  But  that  is 
merely  to  encounter  a  second  barrier,  while  seek- 
ing to  avoid  the  first. 

A  third  point  which  has  not  been  sufficiently 
recognized  is  that  the  proceedings  of  a  court 
must  be  presumed  to  have  been  in  strict  accord 


THE  PROBLEM  11 

with  settled  and  prescribed  rules  or  customs,  and 
the  findings  of  the  court  must  be  presumed  to 
have  been  correct,  unless  the  actual  records  of  the 
court  show  clearly  to  the  contrary,  or  unless  it  can 
be  proved  that  the  case  was  reported  by  abso- 
lutely competent  and  unbiased  eye-witnesses. 

The  proper  method  of  approach,  therefore, 
would  be  to  strive  in  every  possible  way  to  dis- 
cover some  legal  system  into  which  the  narra- 
tives of  the  Gospels  can  be  made  to  fit.  If  this 
effort  results  in  failure,  two  courses  are  open. 
One  may  claim  that  the  accounts  in  the  Gospels 
are  incorrect,  or  one  may  claim  that  the  trial  of 
Jesus  in  both  the  Jewish  and  the  Roman  courts 
was  contrary  to  accepted  forms  and  usages.  But 
neither  of  these  conclusions  should  be  drawn  until 
all  other  possibilities  are  exhausted.  It  is  mani- 
festly improper  to  accuse  the  Jewish  court  of 
conducting  a  serious  trial  in  such  a  farcical  man- 
ner that  the  court  completely  abrogated  its  own 
rules  of  procedure,  and  to  reach  this  conclusion 
simply  because  certain  writers,  unskilled  in  re- 
porting legal  cases,  have  narrated  a  series  of 
incidents  which  cannot  be  made  to  harmonize 
with  the  method  of  conducting  a  criminal  case 
prescribed  by  the  Jewish  law.  Conversely,  it  is 
quite  improper  to  cast  aside  the  narratives  of  the 
Gospel  writers,  simply  because  the  words  and 
acts  of  Jesus,  as  they  are  related  by  these  writers, 
cannot  well  justify  the  verdict  of  guilty  which 


12  THE  PROSECUTION  OF  JESUS 

was  pronounced  against  him,  nor  because  the 
procedure  that  appears  in  these  narratives  can- 
not be  made  to  harmonize  with  that  ordinarily 
adopted  in  criminal  suits.  It  is  indeed  possible 
that  the  Jewish  officials  did  exactly  what  was  in 
their  power  legally  to  do,  and  it  is  equally  possi- 
ble that  the  Gospel  narratives  have  given  an 
accurate  picture  of  what  occurred.  This  idea 
may  be  expressed  in  another  and  more  direct 
way.  Perhaps  the  proceedings  before  the  San- 
hedrin  did  not  constitute  a  criminal  trial  at  all, 
and  perhaps  they  were  not  intended  to  constitute 
a  trial.  The  incident  should  be  approached  in 
the  hope  of  finding  that  the  writers  of  the  Gos- 
pels have  given  a  fair  and  accurate  report,  and 
of  explaining  the  action  taken  against  Jesus  as 
falling  within  a  reasonable  understanding  of  the 
operation  of  the  law. 

At  all  events  it  seems  clear  that  any  study  of 
the  subject  should  aim  at  avoiding  the  necessity 
for  assuming  falsity,  or  malice,  or  illegality  on 
either  side.  In  this  connection  it  may  be  said 
that  Jewish  writers  for  the  most  part,  in  their 
eagerness  to  exonerate  their  own  nation  from  the 
charge  of  having  illegally  convicted  Jesus,  claim 
that  he  was  legally  condemned,  and,  basing  their 
conclusion  on  the  contents  of  the  four  Gospels, 
cast  aside  as  inexact  those  portions  of  the  Gospels 
that  seem  to  contradict  this  view.  Occasionally 
a  Jewish  writer  advances  the  opinion  that  Jesus 


THE  PROBLEM  13 

was  the  victim  of  a  plot  formed  by  Pilate  and 
a  small  faction  of  recreant  Jews.  On  the  other 
hand,  Christian  writers  are  anxious  to  show  that 
the  whole  procedure  and  the  verdict  were  illegal, 
and  that  the  trial  was  a  disgrace  to  the  legal  sys- 
tems of  Jews  and  Romans  alike.  It  is  surely 
appropriate  to  ask  seriously  why  it  is  necessary 
for  Christian  writers  to  insist  that  Jesus  was  con- 
demned illegally.  He  himself  said  that  he  did 
not  come  to  destroy  the  law,  and  yet  no  true 
Christian  believes  that  the  teaching  of  Jesus  was 
merely  a  continuation  of  Mosaic  or  rabbinical 
doctrine.  He  clearly  modified  prevalent  teach- 
ing to  such  an  extent  that  the  Jews  could  truth- 
fully say:  "He  stirreth  up  the  people,  teaching 
throughout  all  Judea,  and  beginning  from  Gali- 
lee even  unto  this  place."  It  is  hard  to  under- 
stand why  the  most  devout  Christian  should 
hesitate  to  admit  that  Jesus  broke  the  Jewish 
ecclesiastical  law,  and  in  consequence  deserved 
an  honest  condemnation  at  the  hands  of  a  people 
whose  whole  criminal  system  had  a  theocratic 
basis.  It  is  surely  a  grander  thing  to  break  the 
law  gloriously  in  the  interest  of  truth  than  to 
abide  by  a  code,  now  becoming  obsolete,  at  a 
time  when  the  world  required  a  better  code  for 
its  own  true  advancement.  That  is  certainly  a 
more  inspiring  thought  than  the  assumption  that 
the  law  was  not  broken,  although  the  interest  of 
civilization  demanded  that  it  should  be  broken. 


14  THE  PROSECUTION  OF  JESUS 

An  analysis  of  the  course  of  events,  as  this 
may  be  gathered  from  the  narratives  of  the  four 
Gospels,  shows  that  there  are  but  three  possibil- 
ities in  the  legal  treatment  of  Jesus,  beginning 
with  the  arrest  in  the  garden  of  Gethsemane: 

First,  that  Jesus  was  in  the  legal  control  of 
the  Roman  authorities  from  the  time  of  the  arrest 
until  the  crucifixion.  According  to  this  view 
the  Romans  arrested  Jesus,  and  held  him  in  their 
own  control  during  the  following  night  and  while 
the  Sanhedrin  was  examining  him. 

Second,  that  Jesus  was  tried  formally  by  the 
Sanhedrin  for  blasphemy  or  for  false  prophecy 
under  Jewish  law  and  Jewish  procedure,  and 
that  he  was  convicted  on  the  charge  presented. 
From  this  point  three  different  theories  may  be 
held:  (a)  that  after  conviction  Jesus  was  sent  to 
Pilate  by  the  Sanhedrin  for  his  ratification  or  re- 
jection of  the  sentence  or  (b)  that  Jesus  was  re- 
tried by  Pilate  on  the  same  charge  according  to 
Roman  procedure,  and  again  convicted  or  (c) 
that  Jesus  was  tried  under  Roman  procedure  on 
a  charge  of  treason  advanced  by  the  Sanhedrin. 

Third,  that  the  proceedings  before  the  San- 
hedrin were  merely  preliminary  hearings,  con- 
ducted in  order  to  present  a  charge  before  the 
Roman  court,  and  that  the  Sanhedrin  presented 
the  charge  and  the  evidence  to  Pilate,  who  con- 
ducted the  trial  according  to  Roman  procedure. 
This  view  leads  to  the  conclusion,  similar  to  that 


THE  PROBLEM  15 

immediately  above,  that  Jesus  was  under  the 
legal  control  of  the  Jewish  authorities  until  the 
time  of  his  transfer  to  Pilate,  after  which  time 
he  was  in  the  legal  control  of  the  Romans. 

The  third  of  these  views  is  the  one  which  it  is 
the  aim  of  this  book  to  establish.  It  will  be 
shown  that  only  the  local  Jewish  officials  partici- 
pated in  the  arrest  of  Jesus,  and  that  they 
held  him  during  the  examination  by  the  Sanhe- 
drin.  It  will  be  shown  also  that  the  action  of 
the  Sanhedrin  was  parallel  to  that  of  a  modern 
grand  jury,  and  that  the  only  trial  to  which  Jesus 
was  subjected  was  that  conducted  by  Pilate.  The 
fundamental  doctrine  here  advocated  is  that  the 
whole  case  was  one  of  Roman  law,  enforced  in 
a  Roman  province,  and  that  the  Jewish  law 
played  but  a  most  insignificant  part. 


CHAPTER  II 

THE  LEGAL  RIGHTS  OF  THE  JEWS  UNDER 
ROMAN  SUPREMACY 

Judea  was  forced  by  Pompey  in  63  B.  C.  to 
submit  to  the  authority  of  the  Roman  Empire, 
and  was  placed  in  some  degree  under  the  super- 
vision of  the  governor  of  Syria.  We  have  no 
definite  information,  however,  concerning  meas- 
ures put  into  effect  by  Pompey,  beyond  the  fact 
that  he  compelled  the  Jews  to  pay  tribute  to 
Rome,  and  that  he  incorporated  into  the  province 
of  Syria  several  seaports  which  the  Jews  had  held 
under  their  control.1  He  also  continued  Hyr- 
canus  in  the  high  priesthood.2  There  is  no  record 
of  changes  in  administration  brought  about  by 
Scaurus,  to  whom  the  province  of  Syria  was  next 
entrusted,  but  his  successor,  Gabinius,  vigorously 
put  an  end  to  the  conflicts  of  parties  in  Judea, 
and  established  the  district  on  a  new  administra- 
tive basis.  He  divided  the  whole  of  the  Jewish 
territory,  including  Judea,  Samaria  and  Galilee, 
into  five  parts,  each  part  having  a  council  at  its 
head.3  The  council  was  called  a  Sanhedrin,  but 

1  Jos.  Ant.  XIV,  74;  76;  Bell  I,  154;  157. 

2  Jos.  Ant.  XIV,  73;  Bell  I,  153. 
*  Jos.  Ant.  XIV,  91;  Bell.  I,  170. 

16 


LEGAL  RIGHTS  OF  THE  JEWS  17 

its  functions  are  nowhere  specified  by  Josephus. 
Indirectly,  however,  it  becomes  clear  that  they 
had  some  degree  of  criminal  jurisdiction,  but  the 
governors  of  Syria  interfered  at  any  time  when 
justice  or  expediency  seemed  to  demand. 

At  this  time  Hyrcanus  was  high  priest,  and 
no  doubt  it  was  under  direction  of  Gabinius  that 
he  was  also  made  ethnarch.  The  new  position 
was  an  administrative  one,  somewhat  similar  to 
that  of  a  governor,  if  one  may  judge  from  the 
parallel  case  of  the  ethnarch  of  the  Jews  in  Alex- 
andria. In  the  meantime  Antipater,  an  Idu- 
maean,  was  rising  to  a  place  of  importance  in  the 
management  of  Jewish  affairs,  and  his  energetic 
personality  compelled  his  recognition  by  the 
Romans.  The  influence  of  Antipater  became 
still  greater  when  it  was  realized  that  he  was 
responsible  for  the  assistance  rendered  by  Hyr- 
canus to  Caesar  during  the  Egyptian  campaign. 
Caesar  thereupon  changed  the  form  of  local  gov- 
ernment in  Judea  by  effecting  a  separation  be- 
tween ecclesiastical  and  civil  administration.  He 
continued  the  priestly  dignity  and  functions  of 
Hyrcanus,  while  to  Antipater  he  gave  the  office 
of  civil  governor  (eVtrpoTro? )  .4  From  this  time 
the  distinction  made  between  the  two  branches 
in  the  conduct  of  affairs  among  the  Jews  was 
maintained.  One  would  naturally  suppose  that 
henceforward  the  high  priest  would  have  no  civil 

4  Jos.  Ant.  XIV,  143;  Bell.  I,  199. 


18  THE  PROSECUTION  OF  JESUS 

or  judicial  functions,  and  the  evidence  that  he 
did  possess  such  functions  is  very  slight.  Anti- 
pater  immediately  assumed  practical  control  of 
the  administration,  and  appointed  one  of  his  sons 
governor  of  Jerusalem,  and  another,  later  called 
Herod  the  Great,  governor  of  Galilee. 

But  it  is  evident  that  Caesar  had  been  some- 
what careless  in  the  demarcation  of  the  functions 
of  the  two  men,  for  neither  Hyrcanus  nor  the 
people  generally  understood  that  Antipater  was 
thereafter  to  be  in  sole  charge  of  civil  affairs. 
The  Jews  became  alarmed  about  the  constant 
usurpation  of  power  by  Antipater,  and  at  last 
approached  Hyrcanus,  asking  him  to  assert  him- 
self against  the  usurper.  The  special  point  upon 
which  they  wished  him  to  act  was  the  violent  and 
lawless  conduct  of  Herod  in  Galilee.  They  in- 
duced Hyrcanus  to  summon  Herod  to  appear 
before  the  Sanhedrin  in  Jerusalem  for  trial. 
Herod  obeyed  the  summons,  and  would  probably 
have  been  convicted,  but  a  letter  came  from  Sex- 
tus  Caesar,  then  governor  of  Syria,  "ordering" 
(irapaKaktov)  Hyrcanus  to  acquit  Herod,  and 
"uttering  threats"  (irpoo-ancLXuv)  against  him  if 
he  did  not  do  so.5  In  this  episode  is  found  ample 
proof  that  the  criminal  jurisdiction  of  the  local 
courts  was  already  being  restricted. 

But  the  exact  status  of  Judea  with  reference 
to  the  Roman  Empire  was  not  yet  clearly  de- 

s  Jos.  Ant.  XIV,  170;  Bell.  I,  Ml. 


LEGAL  RIGHTS  OF  THE  JEWS  19 

fined.  The  treaties  made  by  Julius  Caesar  with 
the  Jews  were  mainly  negative  in  character,  that 
is,  they  prescribed  limitations  to  the  powers  of 
the  Romans.  They  seem,  indeed,  to  have  been 
framed  with  the  express  intention  of  emphasizing 
the  fact  that  Judea  was  not  a  subject  state,  but 
was  independent  and  allied.  The  term  "friends 
and  allies"  actually  occurs  in  one  of  the  treaties, 
apparently  worded  by  Caesar.6  It  may  have 
been  through  the  agency  of  Caesar  that  the 
division  of  the  country  into  five  districts,  made 
by  Gabinius,  was  abolished.  Certainly  the  sum- 
mons of  Herod  from  Galilee  to  Jerusalem  to  be 
tried  by  the  Sanhedrin  there  shows  that  the 
change  had  occurred  before  the  death  of  Caesar. 
Further  limitation  in  the  powers  of  the  Romans 
is  seen  in  the  substantial  reduction  of  the  amount 
of  tribute  the  Jews  were  to  pay,  in  their  exemp- 
tion from  military  service,  and  in  the  relief  from 
granting  supplies  to  the  Roman  soldiers  sta- 
tioned among  them.7 

On  the  positive  side  many  decrees  were  sent 
out,  confirming  certain  definite  rights  to  the 
Jews.  It  was  enacted  that  the  high  priests 
should  enjoy  the  same  privileges  which  they  had 
possessed  before  the  coming  of  the  Romans.8 
Another  decree,  addressed  to  the  Parians,  com- 

e  Jos.  Ant.  XIV,  214. 
7  Jos.  Ant.  XIV,  201-204. 
s  Jos.  Ant.  XIV,  208. 


20  THE  PROSECUTION  OF  JESUS 

plains  that  the  Parians  had  attempted  to  restrict 
the  Jews  in  the  practice  of  their  national  customs 
and  their  national  religion.  Caesar  prohibited 
this  interference,  and  specified  that,  since  the 
Jews  were  friends  and  allies,  their  rights  must 
not  be  restricted.9 

After  the  death  of  Caesar  various  other  rights 
and  exemptions  were  conferred  upon  Jews. 
Dolabella,  when  governor  of  Asia,  granted  to 
the  Jews  of  Asia  Minor  the  privilege  of  exemp- 
tion from  service  in  the  army,  and  gave  them  the 
right  to  use  their  own  customs  in  having  assem- 
blies for  religious  purposes.10  But  the  decree 
says  nothing  about  assemblies  for  any  purpose 
except  the  celebration  of  religious  ceremonies, 
nor  about  other  than  religious  customs,  nor  does 
it  mention  that  the  Jews  were  to  have  the  privi- 
lege of  living  under  the  Jewish  civil  law.  Some 
at  least  of  the  favors  granted  seem  to  have  been 
restricted  to  Jews  who  were  possessed  of  the 
Roman  citizenship. 

There  are  two  documents,  however,  that  confer 
on  certain  Jews  of  Asia  Minor  unusual  rights. 
There  were  some  Jews  of  Sardis,  having  Roman 
citizenship,  who  petitioned  Lucius  Antonius  to 
be  allowed  to  maintain  their  own  customs  (rows 
irarpiovs  POPOVS).  Antonius  wrote  a  letter  to 
the  people  of  Sardis,  recommending  that  the 

»Jos.  Ant.  XIV,  214. 
10  Jos.  Ant.  XIV,  227. 


LEGAL  RIGHTS  OF  THE  JEWS  21 

Jews  be  permitted  to  hold  their  own  assemblies 
for  the  purpose  of  determining  (KP'WOVO-IV) 
their  own  affairs  (Trpdy^ara)  and  controversies 
(dz/TiXoyux?)  with  one  another.11  But  the  state- 
ment is  not  definitely  made  that  they  could  con- 
duct cases  at  law  in  their  assemblies,  although 
the  technical  word  for  a  judicial  decision  is  used. 
It  could  not  reasonably  be  assumed  that  such  a 
privilege  would  be  granted  in  a  province  so  long 
established,  and  so  systematically  ordered.  It  is 
much  more  probable  that  the  reference  is  entirely 
to  religious  ordinances,  and  to  such  disputes  as 
could  be  settled  by  arbitration  in  a  meeting. 

In  reply  to  the  recommendation  of  Lucius 
Antonius,  the  Sardians  passed  a  vote,  of  which 
the  following  is  a  portion:  "Whereas  those 
Jews,  who  are  our  fellow-citizens  .  .  .  have  re- 
quested of  the  people  that,  upon  the  restitution 
of  their  laws  and  liberty  by  the  senate  and  people 
of  Rome,  they  may  assemble  according  to  their 
established  customs,  and  govern  themselves  and 
render  decisions  affecting  themselves,  and  that 
a  place  be  given  them  where  they  may  meet  with 
their  wives  and  children,  and  may  offer,  as  their 
fathers  did,  prayers  and  sacrifices  to  God;  the 
senate  and  people  have  decreed  to  permit  them 
to  assemble  on  the  days  formerly  appointed,  and 
to  act  according  to  their  own  laws."12  It  is  not 

"Jos.  Ant.  XIV,  235. 
12  Jos.  Ant.  XIV,  260-261. 


22  THE  PROSECUTION  OF  JESUS 

impossible  that  the  local  senate  of  the  Sardians 
would  consent,  upon  representations  from  the 
Romans,  to  grant  a  degree  of  self-government 
to  certain  portions  of  the  inhabitants  of  their 
city.  But  the  whole  weight  of  the  context  seems 
to  be  against  assigning  this  meaning  to  the  de- 
cree. The  emphasis  rests  upon  the  right  to  per- 
form religious  observances,  and  it  is  more  than 
probable  that  the  enactment  was  intended  to  be 
limited  in  this  manner.  The  same  conclusion 
may  naturally  be  drawn  from  a  very  similar  de- 
cree passed  about  the  same  time  by  the  people 
of  Ephesus.13 

When  this  degree  of  consideration  was  shown 
for  the  Jews  who  were  scattered  throughout  a 
Roman  province,  one  could  but  suppose  that  the 
Jews  of  Palestine  were  treated  with  the  greatest 
leniency  and  even  friendliness.  That  this  is  true 
becomes  manifest  from  the  fact  that  Judea  was 
not  reduced  to  the  position  of  a  province,  but  was 
allowed  independence  and  almost  unrestricted 
self-government.  Herod,  son  of  Antipater,  and 
a  more  capable  man  than  even  his  father,  ren- 
dered noteworthy  service  to  the  second  trium- 
virate in  reducing  the  remains  of  the  republican 
party  in  the  east,  and  Antony,  out  of  gratitude, 
persuaded  the  Roman  Senate  to  bestow  upon 
Herod  the  title  of  King  of  the  Jews.14  He  there- 
is  Jos.  Ant.  XIV,  263-264. 

i*  Jos.  Ant.  XIV,  385;  Bell.  I,  282;  Dio  Cass.  XLIX,  22-  App 
B.  C.  V,  75;  Strabo  XVI,  p.  765;  Tac.  Hist.  V,  9. 


LEGAL  RIGHTS  OF  THE  JEWS  23 

fore  held  the  position  of  a  client  prince  of  the 
Empire,  and  was  left  free  except  for  a  general 
supervision  which  was  seldom  irksome.  This 
grant  was  later  confirmed  by  Augustus,15  and 
Herod  soon  acquired  almost  complete  control 
over  the  whole  of  Palestine,16  having  under  his 
command  a  legion  of  Roman  soldiers  to  protect 
himself,  and  to  maintain  order  in  the  district.17 
This  practice  was  continued  later  in  support  of 
the  procurators,  when  Judea  became  a  province" 
in  the  ordinary  sense.  Herod  was  left  quite  in- 
dependent in  the  internal  administration  of  his 
country,  and  possessed  even  the  power  of  life 
and  death.18  But  it  is  noteworthy  that  when  he 
wished  to  put  his  two  sons  on  trial  for  rebellion 
against  him,  he  felt  it  necessary  first  to  consult 
Augustus,  and  receive  his  sanction.19  On  a  later 
occasion  he  asked  for  the  permission  of  Augustus 
before  he  ventured  to  put  to  death  his  son  Anti- 
pater,  although  he  had  already  had  a  legal  trial.20 
Notwithstanding  this  apparent  restriction  of 
power,  he  had  his  wife  Mariamne  tried  by  what 
seems  to  have  been  merely  a  mock  trial  and 
put  to  death,  without  authorization  from  the 
Emperor.21 

s  Jos.  Ant.  XV,  200. 
e  Jos.  Ant.  XV,  217. 

7  Jos.  Ant.  XV,  72. 

8  Jos.  Ant.  XV,  76;  XVI,  98;  99. 

» Jos.  Ant.  XVI,  90;  98;  99;  Bell.  I,  537. 
ojos.  Ant.  XVII,  89;  145. 
i  Jos.  Ant.  XV,  229. 


24  THE  PROSECUTION  OF  JESUS 

He  similarly  caused  the  murder,  without  trial, 
of  various  prominent  persons,  among  whom 
Josephus  names  Malichus,  Aristobulus,  Hyr- 
canus,  Sohemus,  Alexandra,  Costobar,  Lysi- 
machus,  Gadias,  Dositheus,  and  the  sons  of 
Babas.  And  again,  when  he  had  quelled  the 
insurrection  fomented  by  Antigonus,  and  had 
captured  many  of  his  important  followers,  he 
killed  forty-five  of  the  principal  men  of  the  re- 
volting party.22  These  are  supposed  to  have  been 
the  Sadducean  members  of  the  Sanhedrin,  who 
had  espoused  the  cause  of  Antigonus  against 
Herod.  Finally,  when  Herod  was  extremely 
sick,  with  the  illness  that  led  to  his  death,  fearing 
that  his  unpopularity  would  lead  to  rejoicing 
rather  than  to  sorrow  when  he  died,  he  ordered  all 
the  distinguished  men  of  the  nation  to  come  to 
Jerusalem  and  assemble  in  the  hippodrome.  He 
issued  commands  to  his  soldiers  that  all  of  these 
men  should  be  killed  when  his  death  was  an- 
nounced to  them,  saying  that  thus  there  would 
be  genuine  mourning  on  the  occasion  of  his 
demise.28 

These  various  acts  of  atrocity  lead  Josephus 
to  remark  that  "the  kingdom  was  entirely  in 
Herod's  own  power,  and  there  was  nobody  re- 
maining of  such  high  position  as  could  interfere 
with  what  he  did  against  the  Jewish  laws."24 

22  Jos.  Ant.  XV,  6;  Bell.  I,  358. 

23  Jos.  Ant.  XVII,  177. 

24  Jos.  Ant.  XV,  266. 


LEGAL  RIGHTS  OF  THE  JEWS  25 

And  yet  Herod  was  not  allowed  to  perform  all 
these  things  without  challenge.  When  he  ap- 
pointed a  priest  from  Babylon  as  high  priest, 
expostulation  came  from  Alexandra,  who  was  of 
the  family  of  Hyrcanus,  and  desired  the  high 
priesthood  for  her  son  Aristobulus.  So  she  ap- 
pealed to  Antony,  of  whom  Herod  was  so  much 
in  fear  that  he  immediately  made  Aristobulus 
high  priest  in  the  place  of  his  own  appointee.25 
But  no  long  time  elapsed  before  Herod  had  the , 
young  Aristobulus  slain,  and  again  an  appeal 
was  made  to  Antony.  Herod  was  summoned  to 
Laodicea,  where  he  was  forced  to  defend  him- 
self.26 He  was  acquitted,  but  the  important 
point  is  that  he  is  thereby  proved  not  to  have 
had  complete  power  in  the  government  of  his 
kingdom. 

In  foreign  affairs  Herod  occupied  the  same 
position  as  any  other  client  prince.  He  was  not 
permitted  to  engage  in  wars  without  permission 
from  the  Empire.  Thus  when  he  desired  to  send 
an  army  against  the  Arabians,  he  first  asked 
Saturninus,  the  governor  of  Syria,  to  be  allowed 
to  do  so.  Having  gained  permission  he  des- 
patched his  army.  When  Syllaeus,  king  of 
Arabia,  reported  to  Augustus  that  Herod  had 
invaded  his  territory,  Augustus,  without  waiting 
to  ascertain  the  merits  of  the  case,  sent  a  stinging 

25  Jos.  Ant.  XV,  21-38. 

26  Jos.  Ant.  XV,  64. 


26  THE  PROSECUTION  OF  JESUS 

rebuke  to  Herod.  In  his  letter  he  declared  that, 
whereas  he  had  always  regarded  Herod  as  a 
friend,  now  he  should  regard  him  as  a  subject.27 
Just  what  would  have  been  the  effect  of  this 
change  upon  the  administration  of  Judea  cannot 
be  known,  for  Augustus  became  reconciled  to 
Herod  before  he  caused  any  alteration  in  exist- 
ing conditions.28 

From  the  reign  of  Archelaus  there  is  not  much 
information  to  be  obtained  regarding  the  rights 
of  the  Jews  in  Palestine.  Shortly  after  the  death 
of  his  father  many  of  his  enemies  appeared  in 
Rome  and  complained  to  Augustus  of  the  con- 
duct of  Archelaus.  They  charged  him  with  hav- 
ing decided  lawsuits  before  the  succession  had 
been  confirmed  by  Augustus.29  The  necessary 
inference  is  that  after  his  confirmation  he  would 
have  this  power.  In  this  there  is  proof  that  the 
functions  of  the  Sanhedrin  as  a  judicial  body 
were  disappearing.  In  the  tenth  year  of  his 
reign  a  second  embassy  came  to  Rome  to  seek 
relief  from  the  oppression  of  Archelaus.  Jo- 
sephus  says  they  begged  for  autonomy,  which 
probably  means  that  they  desired  complete  in- 
dependence from  Rome.30  But  this  they  could 
not  obtain,  and  therefore  asked  that  Judea  be 

27  Jos.  Ant.  XVI,  290. 

28  Jos.  Ant.  XVI,  355. 

29  Jos.  Ant.  XVII,  232. 

so  Jos.  Ant.  XVII,  299;  Bell.  II,  80. 


LEGAL  RIGHTS  OF  THE  JEWS  27 

included  in  the  province  of  Syria,  so  that  they 
might  be  ruled  directly  by  Roman  officials.31 
They  explained  that  their  condition  was  much 
worse  than  it  would  be  under  the  most  tyrannical 
of  rulers,  for  Herod  had  introduced  many 
innovations.32 

Juster  points  out  in  his  latest  book  that  Herod 
assumed  criminal  jurisdiction  only  in  cases  where 
he  had  for  his  object  the  suppression  of  brigand- 
age and  seditions,  except  for  those  cases  in  which 
he  wished  to  have  some  cloak  of  authority  to 
assist  him  in  his  personal  hatreds  and  in  repress- 
ing attempts  against  his  life.  Juster  claims  that 
Herod  acknowledged  that  he  did  not  possess 
judicial  powers  which  had  formerly  belonged  to 
the  Sanhedrin,  by  the  fact  that  he  sought  to  ob- 
tain from  them  authority  to  put  Hyrcanus  to 
death.33  It  is  certainly  the  fact  that  the  people 
protested  against  the  decisions  of  Herod,  but 
not  on  the  ground  that  he  did  not  possess  juris- 
diction, as  Juster  seems  to  think,  but  because  they 
believed  that  his  decisions  were  not  in  accordance 
with  the  law.34  In  answer  to  these  charges, 
Archelaus  insisted  that  the  decisions  rendered  by 
his  father  were  legal.35  But  even  Archelaus  did 
not  think  it  necessary  to  enter  upon  a  discussion 

si  Jos.  Ant.  XVII,  314;  Bell.  II,  91;  Dio  Cass.  LV,  27. 
32  Jos.  Ant.  XVII,  304. 
as  Jos.  Ant.  XV,  173. 
s*  Jos.  Ant.  XVII,  307. 
35  Jos.  Ant.  XVII,  209. 


28  THE  PROSECUTION  OF  JESUS 

of  the  question  of  the  usurpation  of  rights  by 
Herod.  He  seems  to  have  assumed  that  Herod 
had  properly  taken  the  place  of  the  Sanhedrin 
in  criminal  cases.  With  this  understanding  of 
the  situation  one  can  comprehend  why  Augustus, 
in  answer  to  a  petition  of  Jews  of  Cyrene,  de- 
creed that  the  Jews  should  not  be  restricted  in  the 
enjoyment  of  their  own  laws.36  The  point  in  the 
mind  of  Augustus  was  that  the  Jews  must  have 
their  rights,  and  that  governors  of  provinces 
must  in  their  judicial  decisions  have  respect  to 
the  rights  of  the  Jews,  and  must  not  render  de- 
cisions contrary  to  Jewish  customs.  But  here 
again  it  is  permissible  to  hold  that  this  refers 
only  to  religious  customs,  and  not  to  civil  mat- 
ters at  all. 

With  the  banishment  of  Archelaus,  Judea  be- 
came a  Roman  province,  and  one  would  expect 
that  the  rights  of  the  inhabitants  would  be  some- 
what similar  to  those  enjoyed  in  other  provinces 
of  the  Empire.  When  the  Jews  had  appeared 
before  Augustus  and  had  complained  of  the  mis- 
deeds of  Archelaus,  they  had  asked  that  Judea 
be  joined  to  Syria,  and  Josephus  twice  says  that, 
when  Archelaus  was  expelled,  Judea  became  a 
part  of  the  province  of  Syria.87  And  yet  Jo- 
sephus contradicts  himself,  for  in  a  third  passage 
he  says  explicitly  that  .Tiulea  became  a  province.35 

MJos.  Ant.  XVI,  163. 

M  Jut.  XVII,  345;  XVIII,  i. 

n.  IK. 


LEGAL  RIGHTS  OF  THE  JEWS  29 

That  the  last  statement  is  correct  will  be  shown 
in  a  later  chapter.  Judea  was  from  this  time 
governed  by  procurators  appointed  directly  by 
the  emperor,  and  immediately  responsible  to  him. 

It  is  unfortunate  that  we  do  not  have  the  de- 
cree of  the  Senate  creating  the  province  of  Judea, 
for  it  would  give  the  exact  relation  of  the  Romans 
and  the  Jews,  and  would  define  the  rights  and 
privileges  of  both  parties.  And  even  more  to  be 
deplored  is  the  fact  that  not  a  single  bill  survives 
creating  any  one  of  the  many  provinces  existing 
at  that  time.  Our  knowledge  of  their  contents  is 
gained  from  notices  scattered  throughout  Greek 
and  Latin  literature.  But  from  these  we  learn 
that  the  Romans  allowed  to  the  subject  nations 
all  the  rights  that  were  consistent  with  an  ade- 
quate administration,  and  did  not  conflict  unduly 
with  Roman  interests.  In  Egypt  and  in  Sicily 
much  of  the  native  private  law  was  allowed  to 
remain.  The  same  is  probably  true  for  the  ma- 
jority of  the  provinces.  The  practice  of  the 
native  religion  was  not  as  yet  prohibited,  nor  was 
it  restricted  or  influenced  to  the  slightest  degree. 
But  in  all  cases  it  was  the  Romans  who  enforced 
the  laws,  and  determined  the  procedure  of  the 
courts. 

This  statement  is  certainly  true  for  the  period 
of  the  Empire.  No  doubt  in  early  republican 
times  the  provinces  were  regarded  as  com- 
munities in  alliance  with  Rome,  and  retained 


30  THE  PROSECUTION  OF  JESUS 

their  native  criminal  law  and  much  of  their  civil 
law.  The  governor  actively  participated  in  cases 
arising  between  two  Roman  citizens  resident  in 
the  province,  or  between  a  Roman  citizen  and  a 
native.  The  code  of  laws  which  was  enforced 
was  that  considered  specially  applicable  to  the 
conditions  in  each  province.  But  gradually  the 
people  in  the  provinces  came  to  be  regarded  as 
subjects  rather  than  as  allies,  and  as  this  feeling 
extended  the  functions  of  the  governor  as  an 
officer  of  the  law  increased.  Even  from  the 
earliest  period  the  governor  took  cognizance  of 
all  matters  that  had  any  relation  to  the  public 
security  or  the  majesty  of  the  Empire.  Conse- 
quently there  was  no  time  at  which  the  Roman 
magistrate  would  not  step  in  when  a  charge  of 
treason  was  made,  or  a  seditious  movement  be- 
gun, or  any  offense  was  committed  which  had  a 
tendency  to  decrease  the  power  of  the  Roman 
government  or  lessen  the  respect  in  which  it  was 
held.  The  case  against  Jesus  is  one  especially 
in  point,  for  the  charge  against  him  could  under 
no  circumstances  be  tried  by  any  tribunal  except 
that  of  the  governor. 

There  is  little  said  in  our  sources  regarding  the 
law  in  Judea  after  its  establishment  as  a  prov- 
ince. The  accounts  of  the  administration  of 
the  first  few  procurators  are  very  scanty.  In 
fact  the  only  one  who  became  conspicuous  was 
Pilate,  and  the  Jewish  historians  vent  all  their 


LEGAL  RIGHTS  OF  THE  JEWS  31 

wrath  upon  him.  Early  in  the  reign  of  Caligula 
a  Jewish  embassy  waited  upon  the  emperor  in 
Rome,  with  the  request  that  he  prevent  further 
interference  with  their  worship  of  God  in  their 
own  way.  Philo  was  a  member  of  the  embassy, 
and  wrote  an  account  of  it.  Among  other  things 
Philo  includes  a  long  letter  written  by  Agrippa  I 
to  Caligula,  in  which  Pilate  is  especially  charac- 
terized: "He  feared  lest  they  might  in  reality 
go  on  an  embassy  to  the  emperor,  and  might  im- 
peach him  with  respect  to  other  particulars  of 
his  government,  in  respect  to  his  corruption,  and 
his  acts  of  insolence,  and  his  rapine,  and  his  habit 
of  insulting  people,  and  his  cruelty,  and  his  con- 
tinual murder  of  persons  untried  and  uncon- 
demned,  and  his  never-ending,  and  gratuitous, 
and  most  grievous  inhumanity."39  The  impor- 
tant point  here  is  the  fact  that  persons  had  been 
punished  whom  he  had  not  condemned  legally. 
It  is  assumed  that  he  had  jurisdiction,  and  no 
complaint  would  have  been  made  if  he  had  con- 
ducted cases  according  to  the  law. 

The  only  other  question  raised  in  the  sources 
is  the  meaning  of  the  phrase  "national  customs 
and  laws"  used  frequently  by  Josephus  and 
Philo.  Neither  of  the  historians  defines  it,  no 
doubt  because  it  was  perfectly  clear  to  Jewish 
readers.  Philo  says  that  Augustus  sanctioned 
the  national  customs  of  the  Jews,40  that  Tiberius 

as  Leg.  ad  Gaium,  38. 
*o<7.  Place.  7. 


32  THE  PROSECUTION  OF  JESUS 

ordered  governors  not  to  change  any  of  the  Jew- 
ish customs,41  that  Caligula  had  a  special  hatred 
against  the  Jews  because  they  would  not  worship 
him  nor  permit  "any  of  their  national  or  heredi- 
tary customs  to  be  destroyed."42  But  there  are 
two  passages  in  Philo  from  which,  at  least  in- 
directly, a  definition  of  this  expression  may  be 
formulated.  He  says  that  Flaccus  took  away 
from  the  Jews  their  constitution,  and  then  ex- 
plains this  word  by  saying  that  it  included  their 
"national  customs  and  lawful  political  rights  and 
social  privileges."43  One  cannot  avoid  the  con- 
clusion that  "customs"  were  meant  by  Philo  to 
relate  only  to  religious  service  according  to  the 
established  Jewish  rites.  Once  elsewhere  Philo 
seems  to  define  the  term  as  equivalent  to  adher- 
ence to  the  sacredness  of  Jewish  worship,  and 
laws  are  said  to  be  oracles  given  by  God.44  This 
coincides  exactly  with  the  contention  made  above 
that  only  a  religious  sense  was  implied  in  the 
treaties  of  republican  times. 

It  seems  certain,  therefore,  that  the  Jews  were 
left  in  undisturbed  possession  of  their  native  re- 
ligion, but  that  the  civil  and  criminal  laws  pre- 
vailing in  Judea  were  those  promulgated  and 
enforced  by  the  Romans.  The  private  law  was 
contained  in  an  edict  published  by  the  governor 

41  Leg.  ad  Gaium,  24. 
«  Leg.  ad  Gaiwm,  16. 

43  C.  Place.  8. 

44  Leg.  ad  Gaium,  31. 


LEGAL  RIGHTS  OF  THE  JEWS  33 

when  he  assumed  office,  and  was  suited  to  the 
needs  of  the  inhabitants  of  the  province.  The 
criminal  law  was  in  part  the  Roman  criminal 
law,  and  in  part  was  based  upon  the  Hebrew 
code.  The  ecclesiastical  law  of  the  Jews  was 
allowed  to  stand  unchanged,  but  it  is  extremely 
doubtful  whether  there  was  any  means  of  en- 
forcing it.  If  a  person  was  guilty  of  an  infringe- 
ment of  the  Jewish  ecclesiastical  law  the  Mosaic 
code  prescribed  that  he  should  be  punished.  The 
national  worship  was  part  of  the  duty  of  citizen- 
ship, and  failure  in  this  could  be  punished  just  as 
civil  offenses  were  punished.  The  Romans  paid 
little  heed  to  this  relationship  in  their  own  life, 
and  were  extremely  tolerant.  They  did,  indeed, 
prosecute  those  who  were  guilty  of  profaning  the 
mysteries,  but  other  matters  might  go  unchal- 
lenged. So  it  is  incredible  that  they  would 
undertake  to  inflict  punishment  on  Jews  in  the 
province  who  failed  to  perform  their  religious 
duties,  or  who  were  guilty  of  a  direct  violation 
of  a  religious  ordinance.  It  is  equally  incredible 
that  they  would  allow  a  native  court  to  inflict  any 
severe  punishment  for  an  offense  of  this  kind. 


CHAPTER  III 

THE  DATE  OF  THE  TRIAL 

The  subject  of  the  chronology  of  the  life  of 
Jesus  has  long  been  vigorously  debated,  but  the 
solution  does  not  come  nearer  as  the  mass  of 
literature  increases.  It  can  scarcely  be  said  that 
there  is  a  consensus  of  opinion  on  the  date  of  any 
single  event  in  the  whole  of  the  life  of  Jesus. 
The  belief  is  fairly  general  that  the  nativity  oc- 
curred in  6  or  5  B.  C.,  that  is,  at  least  one  year 
before  the  death  of  Herod  the  Great.  The  bap- 
tism and  the  beginning  of  the  public  ministry 
are  usually  placed  at  the  end  of  the  year  A.  D.  26, 
when  Jesus  was  perhaps  thirty-one  years  of  age, 
or,  as  Luke  says,  when  he  was  "about  thirty 
years  old."  The  Gospel  of  John  -represents  the 
duration  of  the  ministry  as  somewhat  over  three 
years,  and  this  is  being  more  and  more  generally 
accepted,  against  the  view  that  seems  to  be  taken 
in  the  synoptic  Gospels,  that  the  ministry  lasted 
but  a  little  more  than  one  year.  Assuming  that 
the  ministry  began  at  the  end  of  26,  and  lasted 
three  full  years,  biblical  scholars  place  the  trial 
and  crucifixion  at  the  passover  in  the  spring  of 

34 


THE  DATE  OF  THE  TRIAL  35 

the  year  A.  D.  30.  Those  who  think  that  the  min- 
istry lasted  only  one  year  commonly  place  its 
beginning  in  the  last  months  of  28  or  in  the  first 
months  of  29,  with  the  result  that  they  accept  the 
same  date  for  the  crucifixion  as  do  those  who 
think  that  the  ministry  lasted  three  years.  Ac- 
cording to  this  view,  which  may  be  called  the 
traditional  one,  Jesus  was  thirty-four  or  thirty- 
five  years  of  age  at  the  time  of  his  death.  If 
there  is  a  consensus  of  opinion  among  scholars 
on  any  one  point,  it  is  certainly  on  the  date  of 
the  trial  and  death  of  Jesus. 

The  early  church  computed  the  chronology  of 
the  life  of  Christ  in  a  very  simple  and  rational 
manner.  They  took  as  their  starting-point  the 
statement  of  Luke  that  the  word  of  the  Lord 
came  to  John  the  Baptist  in  the  year  A.  D.  28, 
the  fifteenth  year  of  the  reign  of  Tiberius.  The 
ministry  of  Christ  began  shortly  after  this  event, 
and,  according  to  their  belief,  lasted  but  one  year. 
Some  of  the  Fathers  said  that  the  crucifixion  oc- 
curred at  the  passover  of  29,  others  placed  it  at 
the  passover  of  30.  Modern  scholars  are  almost 
unanimous  in  their  opinion  that  30  was  the  year 
in  which  the  death  of  Jesus  occurred,  but  a 
change  has  come  in  their  views  as  to  the  duration 
of  the  ministry.  The  belief  is  quite  general  that 
the  public  activity  of  Jesus  occupied  three  full 
years,  according  to  the  account  of  John,  which 
is  at  least  more  specific  than  that  of  the  synoptic 


36  THE  PROSECUTION  OF  JESUS 

Gospels.  For  this  reason  it  has  become  necessary 
to  compute  other  dates  in  the  life  of  Jesus  in  a 
new  way.  Chronology  is  now  fixed  by  a  different 
understanding  of  the  passage  in  Luke  upon 
which  the  church  Fathers  based  their  computa- 
tion, and  other  indications  of  time  in  the  Gospels 
receive  new  importance,  or  new  interpretations. 

The  crucifixion  is  mentioned  only  twice  by  his- 
torians of  that  century.  Tacitus  merely  states 
the  fact,  but  gives  no  hint  of  the  date.1  The  pas- 
sage of  Josephus  in  which  the  crucifixion  is  men- 
tioned,2 has  been  pronounced  spurious  by  the 
majority  of  scholars,  but,  if  it  is  an  interpolation, 
it  must  have  crept  in  very  early,  for  Eusebius 
cites  it  as  from  Josephus.3  Since  the  arrange- 
ment of  Josephus  is  almost  strictly  chronological, 
an  interpolator  would  naturally  adopt  the  same 
method,  and  insert  a  spurious  passage  where  it 
would  fit  chronologically.  It  does  occur  between 
the  account  of  the  acts  which  first  won  Pilate 
the  hostility  of  the  Jews  and  those  which  finally 
led  to  his  recall.  This  would  place  the  crucifixion 
in  the  middle  of  the  administration  of  Pilate. 

There  are  two  different,  but  related,  questions 
involved  in  the  determination  of  the  date  of  the 
trial,  and  both  are  of  importance.  The  question 
of  the  year  in  which  the  episode  occurred  is  inti- 

1  Tac.  Ann.  XV,  44. 

2  Ant.  XVIII,  63-64. 
sjff.  E.  I,  11,  7-8. 


THE  DATE  OF  THE  TRIAL  37 

mately  associated  with  that  of  the  day  of  the 
week  and  the  day  of  the  month  on  which  the 
arrest  of  Jesus  actually  took  place.  The  decision 
on  this  point  rests  partly  on  evidence  afforded 
by  the  New  Testament,  and  partly  on  the  nature 
of  the  Jewish  calendar.  It  is  necessary  to  deter- 
mine when  the  passover  feast  was  celebrated  in 
the  years  of  Christ's  ministry. 

The  four  Gospels  place  the  resurrection  on 
"the  first  day  of  the  week,"  that  is,  on  Sunday.4 
Since  the  resurrection  took  place  on  "the  third 
day"  after  the  crucifixion,  Jewish  methods  of 
reckoning  would  require  the  placing  of  the  trial 
and  death  of  Jesus  on  Friday.  This  is  confirmed 
by  the  statement  that  the  day  following  the  cruci- 
fixion was  "the  sabbath,"  and  that  Mary  Magda- 
lene and  the  other  Mary  found  that  Christ  had 
risen  from  the  dead  early  on  the  next  morning. 
So  far  there  is  complete  harmony,  but  a  differ- 
ence of  opinion  must  have  grown  up  in  the  church 
itself  regarding  the  relation  of  the  crucifixion  to 
the  time  at  which  the  passover  was  celebrated  in 
that  year,  and  the  discrepancy  is  reflected  in  the 
narratives  of  the  Gospels. 

The  account  of  John  is  very  clear  and  definite 
on  this  point.  John  says  that,  when  the  Jews 
took  Jesus  before  Pilate,  "they  themselves  en- 
tered not  into  the  praetorium,  that  they  might 
not  be  defiled,  but  might  eat  the  passover."5  This 

*Mt.  XXVIII,  1;  Mk.  XVI,  2;  Lk.  XXIV,  1;  Jri.  XX,  1. 
Bjn.  XVIII,  28. 


38  THE  PROSECUTION  OF  JESUS 

shows  distinctly  John's  belief  that  the  trial  of 
Jesus  by  Pilate  on  Friday  morning  preceded  the 
eating  of  the  passover  supper.  But  it  also  shows 
that  the  passover  was  to  be  eaten  on  that  very 
evening,  otherwise  the  Jews  would  not  have 
feared  defilement.  The  ceremonial  purification 
involved  in  the  putting  away  of  leaven  during 
the  twenty-four  hours  before  the  evening  of  the 
passover  would  be  destroyed  if  they  entered  the 
house  of  a  pagan  (or  possibly  if  they  were  in  a 
house  which  contained  leaven),  and  they  would 
not  be  allowed  to  eat  the  passover  with  the  res^ 
of  the  nation.  Such  defilement  could  not  occur 
unless  the  time  specified  for  the  purification  had 
already  begun.  The  passover,  therefore,  was  to 
be  celebrated  on  Friday  evening.  John  gives  the 
same  information  a  little  later  in  another  way 
by  the  remark  that  the  sabbath  of  this  week  was 
a  "high  day,"  that  is  to  say,  the  sabbath  was  co- 
incident with  a  feast  day.6  Objection  has  been 
made  to  this  view,  on  the  ground  that  ceremonial 
defilement  could  be  purified  by  ablutions,  and 
the  person  defiled  could  then  eat  the  passover. 
But  the  treatise  on  the  Passover  in  the  Mishna 
indicates  that  the  defiled  person  could  not  eat 
the  passover  until  the  next  regularly  ordained 
feast  occurred. 

The  Gospels  contain  an  apparent  discrepancy 
in  their  description  of  the  day  of  the  crucifixion. 

«  Jn.  XIX,  31. 


THE  DATE  OF  THE  TRIAL  39 

John  says  that  this  day  was  the  "Preparation  of 
the  passover,"7  while  Mark,  who  also  calls  the 
day  that  of  the  "Preparation,"  defines  the  term 
as  equivalent  to  "the  day  before  the  sabbath."8 
Luke  does  not  give  a  definition,  but  remarks: 
"It  was  the  day  of  the  Preparation,  and  the  sab- 
bath drew  on."9  The  explanation  of  Mark  seems 
to  imply  that  the  word  "Preparation"  was  the 
regular  word  for  Friday,  and  it  is  well  known 
that  the  Christian  church  adopted  this  word  early 
to  denote  that  day.  But  Westberg  has  argued 
that  "sabbath"  in  Mark  and  Luke  is  equivalent 
to  "feast  day,"  and  that  the  word  "Preparation" 
did  not  come  to  denote  Friday  until  the  church 
began  to  celebrate  Easter  on  Sunday.  He 
points  out  that  two  bishops  of  Alexandria,  Peter 
and  Clement,  define  "Preparation"  as  the  "four- 
teenth day  of  the  first  month,"  that  is,  the  day 
before  the  celebration  of  passover.  It  is  also  an 
undoubted  fact  that  Josephus  and  the  Gospel  of 
Peter  use  the  word  "sabbath"  of  feast  days.  But 
it  is  equally  true  that  Josephus  often  uses  the 
same  word  to  denote  an  ordinary  sabbath,  or 
Saturday.  On  the  other  hand,  it  is  difficult  to 
find  the  word  Preparation  used  of  the  day  before 
an  ordinary  sabbath.  It  seems  to  be  so  used  at 
least  once  in  Josephus,10  although  Westberg 

7  Jn.  XIX,  14. 

8  Mk.  XV,  42. 

»  Lk.  XXIII,  54. 

10  Jos.  Ant.  XVI,  163. 


40  THE  PROSECUTION  OF  JESUS 

seeks  to  explain  it  as  the  day  before  a  feast.  But 
it  is  found  frequently  in  the  tract  on  the  passover 
in  the  Talmud  in  the  sense  of  the  day  before  a 
feast.  One  must  conclude  that  the  evidence  is 
not  sufficiently  conclusive  to  enable  us  to  say  that 
Mark  and  Luke  mean  the  same  thing  as  does 
John.  It  must  still  remain  that  the  synoptic 
Gospels  hold  that  the  crucifixion  occurred  after 
the  passover,  while  John  states  that  it  occurred 
before  the  feast. 

The  synoptic  Gospels  very  definitely  state  that 
the  passover  was  eaten  by  Jesus  and  his  disciples 
on  Thursday  evening.  Mark  says :  "And  on  the 
first  day  of  unleavened  bread,  when  they  sacri- 
ficed the  passover,  his  disciples  say  unto  him, 
Where  wilt  thou  that  we  go  and  make  ready  that 
thou  mayest  eat  the  passover?"11  And  yet  the 
writers  of  the  first  three  Gospels  seem  to  have 
been  in  some  uncertainty  about  the  exact  date. 
They  say  that  the  intention  of  the  Sanhedrin  was 
to  have  Jesus  put  to  death,  but  they  wished  to 
avoid  the  time  of  the  passover:  "Now  after  two 
days  was  the  feast  of  the  passover  and  the  un- 
leavened bread:  and  the  chief  priests  and  the 
scribes  sought  how  they  might  take  him  with 
subtlety  and  kill  him :  for  they  said,  Not  during 
the  feast,  lest  haply  there  shall  be  a  tumult  of  the 
people."12  The  synoptists  begin  their  accounts 

"  Mk.  XIV,  12;  cp.  Mt.  XXVI,  17;  Lk.  XXII,  7-9. 
12  Mk.  XIV,  1-2;  cp.  Mt.  XXVI,  2-5;  Lk.  XXII,  1-2. 


THE  DATE  OF  THE  TRIAL  41 

of  the  trial  and  crucifixion  as  if  they  intended  to 
describe  events  which  were  completed  before  the 
national  passover  festival,  but  suddenly  and  un- 
expectedly change  to  a  different  view. 

It  is  evident  that  Paul  accepted  the  chronology 
adopted  by  John.  He  implies  very  clearly  that 
the  death  of  Jesus  took  place  about  the  time  at 
which  the  passover  lambs  were  being  sacrificed: 
"For  our  passover  also  hath  been  sacrificed,  even 
Christ."18  Likewise  he  gives  a  date  for  the  resur- 
rection that  harmonizes  only  with  the  date  given 
by  John:  "But  now  hath  Christ  been  raised  from 
the  dead,  the  firstfruits  of  them  that  are, 
asleep."1  This  naturally  means  that  the  resur- 
rection coincided  with  the  day  of  the  feast  of  the 
firstfruits,  which  was  the  day  beginning  twenty- 
four  hours  after  the  evening  of  the  celebration 
of  passover.  If,  then,  the  passover  supper  oc- 
curred on  Friday  evening,  the  day  of  firstfruits 
extended  from  evening  on  Saturday  until  eve- 
ning on  Sunday,  during  which  time  the  resurrec- 
tion actually  occurred  according  to  the  account 
of  all  four  Gospels. 

One  would  be  inclined  to  favor  the  chronology 
of  John  and  Paul,  for  the  reason  that  it  har- 
monizes best  with  the  attitude  of  the  Jewish 
nation  toward  the  sacredness  of  the  passover  day. 
If  we  assume  that  the  last  supper  of  Jesus  and 

is  I  Cor.  V,  7. 
"  I  Cor.  XV,  20. 


42  THE  PROSECUTION  OF  JESUS 

his  disciples  took  place  at  the  time  of  the  national 
feast,  we  are  forced  to  believe  that  the  prescribed 
observance  of  the  festival  was  violently  broken 
by  the  episode  of  the  arrest  and  trial.  The  pass- 
over  supper  itself  must  have  been  interrupted  by 
those  who  made  the  arrest,  and  the  Sanhedrists 
broke  all  Mosaic  regulations  concerning  the 
passover  when  they  engaged  in  the  hearing  of 
the  case  of  Jesus  during  a  sacred  day.  One 
would  not  believe  this  unless  compelled  by  the 
most  decisive  evidence. 

The  treatise  on  the  passover,  forming  part  of 
the  Talmud,  makes  the  statement  that  in  Galilee 
the  people  did  no  work  after  sunrise  on  the  day 
before  the  passover,  but  that  in  Judea  they  might 
work  until  noon.15  These  conditions  harmonize 
perfectly  with  the  actions  of  the  Sanhedrin,  pro- 
vided the  trial  and  crucifixion  occurred  on  Fri- 
day preceding  the  passover.  Certain  other 
indications  point  in  the  same  direction.  When 
Jesus  was  bearing  his  cross  to  the  place  of  execu- 
tion, Simon  of  Cyrene  met  the  procession  and 
was  forced  by  the  Roman  soldiers  to  relieve  Jesus 
of  the  burden  which  seemed  too  great  for  him. 
Cyrene  is  situated  in  Northern  Africa,  and  no 
reason  is  assigned  for  the  presence  of  Simon  in  the 
neighborhood  of  Jerusalem  at  this  time.  But  the 
Gospels  say  that  he  was  coming  "from  the 
country,"16  and  the  general  assumption  is  that 

15  Mishna,  Pesachim,  4,  5. 

i«  Mk.  XV,  21 ;  Lk.  XXIII,  26. 


THE  DATE  OF  THE  TRIAL  43 

he  was  returning  to  the  city  from  his  work  in  the 
fields.  If  this  is  true  the  day  must  have  been 
that  before  the  passover,  for  he  would  not  have 
been  working  on  the  day  following.  Who  this 
Simon  was  is  unknown,  but  he  must  have  been 
a  person  of  consequence,  for  Mark  thinks  that 
he  is  identified  by  being  called  the  "father  of 
Alexander  and  Rufus."  His  name  is  Greek,  but 
he  must  have  been  of  Jewish  origin,  or  the 
Romans  would  not  have  put  this  degrading  work 
upon  him.  It  seems  in  every  way  probable  that 
he  had  removed  from  his  former  home  in  Cyrene, 
and  was  now  living  in  Jerusalem.  Hence  he 
might  easily  be  known  to  the  readers  of  Mark. 
With  this  explanation  it  becomes  clear  that  the 
day  of  the  crucifixion  must  have  preceded  that 
of  the  passover.  This  is  another  piece  of  evidence 
that  the  writers  of  the  synoptic  Gospels  are  less 
consistent  in  their  chronological  statements  than 
John.  The  consistency  of  John  in  this  matter  is 
illustrated  by  the  remark  that,  when  Judas  left 
the  table  at  the  last  supper  and  went  away,  the 
disciples  conjectured  that  he  had  gone  to  pur- 
chase things  needed  for  the  passover  feast.17 

Since  a  discrepancy  exists  in  the  sources  re- 
garding the  day  of  the  week  on  which  the  pass- 
over  occurred  in  the  year  of  the  death  of  Jesus, 
it  is  necessary  to  try  to  determine  the  matter  by 
an  examination  of  the  Jewish  calendar.  The 

"  Jn.  XIII,  29. 


44  THE  PROSECUTION  OF  JESUS 

Jewish  day  began  a  short  time  after  sunset,  and 
continued  until  the  same  time  on  the  following 
evening.  The  month  began  on  the  evening  of, 
or  following,  the  theoretically  visible  new  moon. 
The  time  of  the  appearance  of  the  new  moon 
was  determined  by  calculation  rather  than  by 
observation  at  this  time,  so  that  the  month  began 
on  the  evening  following  the  astronomical  new 
moon,  and  not  the  visible  new  moon.  The  first 
month  of  the  year,  named  Nisan,  began  on  the 
evening  of  the  new  moon  nearest  to  the  vernal 
equinox.  The  passover  occurred  on  the  fifteenth 
of  Nisan,  that  is,  on  the  day  of  the  first  full  moon 
following  the  vernal  equinox.  The  passover 
supper  was  eaten  during  the  evening  and  night 
composing  the  first  part  of  the  day  called  the 
fifteenth  of  Nisan. 

Rules  for  determining  the  days  and  hours 
when  the  new  and  full  moons  occurred  in  the 
spring  during  the  years  of  the  life  of  Jesus  have 
been  formulated  by  Gauss,  Ideler,  De  Morgan, 
Bach  and  others,  while  tables,  based  on  these 
calculations,  have  been  constructed  by  several 
astronomers,  among  them  Schram,  Ginzel  and 
Westberg.  A  two-fold  calculation  is  necessary. 
One  must  find  the  day  of  the  month  and  the  hour 
of  the  day  on  which  the  moon  became  full,  and 
one  must  discover  on  what  day  of  the  week  the 
phenomenon  occurred.  The  immediate  point  to 
be  determined  is  the  occurrence  of  the  pass- 


THE  DATE  OF  THE  TRIAL  45 

over  on  Thursday  or  Friday  during  the  period 
within  which  the  trial  of  Jesus  must  have  taken 
place,  and  from  this  knowledge  one  must  de- 
cide which  of  these  years  will  best  harmonize 
with  other  chronological  indications  in  the  life 
of  Jesus. 

In  the  years  from  A.  D.  27  to  33,  the  years 
thought  by  various  scholars  to  be  of  importance 
in  connection  with  the  public  life  of  Jesus,  the 
new  moon  nearest  the  vernal  equinox  occurred 
on  the  following  days  and  at  the  hour  given  at 
the  meridian  of  Jerusalem: 

A.  D.  27  March  26  8.06  P.  M. 

A.  D.  28  March  15  2.35  A.  M. 

A.  D.  29  April      2  7.52P.M. 

A.  D.  30  March  22  8.20  P.  M. 

A.  D.  31  March  12  1.08  A.  M. 

A.  D.  32  March  29  10.59  P.  M. 

A.D.  33  March  19  1.23P.M. 

The  Jewish  year  began  on  the  evening  of  the 
days  in  the  table  just  given,  and  the  passover 
was  celebrated  at  the  beginning  of  the  fifteenth 
day  thereafter.  The  date  of  the  passover  may 
be  established  in  another  way — by  finding  the 
date  of  the  evening  following  the  full  moon 
next  after  the  vernal  equinox.  The  full  moon 
occurred  at  this  time  of  the  year  during  the 
period  under  discussion  at  the  following 
times : 


46  THE  PROSECUTION  OF  JESUS 

A.D.  27  April      9  6.25P.M. 

A.  D.  28  March  29  5.42  A.  M. 

A.D.  29  April    17  5.13A.M. 

A.D.  30  April      6  10.30P.M. 

A.  D.  31  March  27  1.37  P.  M. 

A.D.  32  April    14  11.28A.M. 

A.  D.  33  April      3  5.13  P.  M. 

When  these  two  tables  are  combined,  and  the 
day  of  the  week  is  calculated,  it  is  found  that  the 
passover  supper  was  eaten  on  the  following  days 
of  the  month  and  week : 

A.  D.  27  Evening  of  April     9  =  Wednesday. 

A.  D.  28  Evening  of  March  29  =  Monday. 

A.  D.  29  Evening  of  April    17  =  Sunday. 

A.  D.  30  Evening  of  April      6  =  Thursday. 

A.  D.  31  Evening  of  March  27  =  Tuesday. 

A.  D.  32  Evening  of  April    14  =  Monday. 

A.  D.  33  Evening  of  April      3  =  Friday. 

Since  the  crucifixion  took  place  on  the  morning 
of  Friday,  it  is  clear  that,  if  it  preceded  the  eat- 
ing of  the  passover,  the  only  date  which  will 
harmonize  with  the  conditions  is  the  year  33.  On 
the  other  hand,  if  the  trial  and  crucifixion  oc- 
curred after  the  eating  of  the  passover  supper, 
and  if  this  latter  was  celebrated  on  the  evening 
of  Thursday,  the  year  30  is  the  only  appropriate 
time  in  this  series.  The  converse  of  this  may  be 
expressed  in  the  following  way.  If  one  believes 


THE  DATE  OF  THE  TRIAL  47 

that  the  crucifixion  occurred  on  the  fourteenth 
of  Nisan,  that  is,  on  the  morning  before  the  pass- 
over  festival,  he  is  forced  to  accept  the  year  33 
as  the  year  in  which  the  event  occurred.  But  if 
one  believes  that  the  crucifixion  took  place  on  the 
morning  following  the  passover,  he  is  forced  to 
maintain  that  the  event  occurred  in  the  year  30. 

These  are  the  only  two  years  in  the  series  which 
the  times  of  the  appearance  of  the  new  moon  will 
allow  to  be  at  all  possible.  And,  in  fact,  the  year 
30  is  almost  universally  thought  to  have  been  that 
in  which  the  death  of  Jesus  happened.  The  year 
29  has  been  adopted  by  Turner,  who  thinks  that 
the  calendar  will  allow  of  such  a  possibility.  In 
that  year  the  spring  full  moon  came  on  April  17, 
and  the  one  immediately  preceding  it  in  the  same 
year  fell  on  March  18,  at  9.47  p.  M.  It  happens 
also  that  this  was  a  Friday.  Turner  cites  Ana- 
tolius,  who  complains  that  the  Jews  sometimes 
placed  the  vernal  equinox  three  or  four  days  too 
early.  He  argues,  therefore,  that  the  year  29 
fulfills  these  conditions,  and  that  the  full  moon 
may  have  fallen  on  exactly  the  day  on  which  the 
Jews  erroneously  placed  the  equinox  in  that  year. 
It  must  be  said  that  this  thread  of  reasoning  is 
very  tenuous,  but  there  is  a  greater  objection 
than  the  extreme  improbability  that  this  was  one 
of  the  years  in  which  such  an  error  would  be 
made. 

The  ordinary  Jewish  year  consisted  of  twelve 


48  THE  PROSECUTION  OF  JESUS 

lunar  months,  making  a  total  of  354  days.  Thus 
the  calendar  was  continually  advancing  faster 
than  the  solar  year.  In  order  to  make  the  feast 
of  firstfruits  come  at  the  proper  development  of 
the  grain,  it  became  necessary  to  insert  an  addi- 
tional month  when  the  solar  calendar  required 
one.  It  will  be  noticed  that  the  new  moon  in  the 
spring  of  28  occurred  on  March  15.  There  were 
actually  thirteen  lunar  months  between  that  date 
and  April  2  of  the  year  29.  Consequently  one 
may  reasonably  assume  that  the  year  28-29  was 
one  of  the  years  in  which  an  additional  month 
was  inserted  in  the  calendar.  The  Jews  were 
careful  to  avoid  making  the  festival  too  early, 
and  would  certainly  not  have  placed  it  actually 
before  the  vernal  equinox. 

It  has  been  shown  above  that  John  and  Paul 
believed  that  the  crucifixion  preceded  the  pass- 
over,  and  that  this  is  much  more  likely  to  have 
been  the  case  than  the  date  somewhat  confusedly 
adopted  in  the  synoptic  Gospels.  It  was  shown 
that  this  day  was  less  sacred  than  the  day  of  the 
passover  itself,  and  that  the  many  things  done 
in  connection  with  the  trial  would  have  violated 
all  Jewish  regulations,  if  performed  on  the  day 
of  the  passover.  These  reasons  lead  one  to  the 
conclusion  that  the  death  of  Jesus  happened  on 
Friday  immediately  preceding  passover,  and  the 
year,  therefore,  must  have  been  A.  D.  33,  for  in 
no  other  year  did  the  passover  fall  on  Friday 


THE  DATE  OF  THE  TRIAL  49 

evening.  Other  indications  of  time  in  the  Gos- 
pels all  point  in  the  same  direction.  Of  these 
there  is  only  one  which  definitely  names  a  date, 
the  others,  less  precise,  are  useful  because  they 
confirm  the  one  that  is  explicit. 

The  passage  in  which  a  definite  date  occurs 
has  given  rise  to  much  discussion,  chiefly  because 
of  a  persistent  effort  to  justify  an  understanding 
of  it  which  is  not  the  obvious  or  natural  one. 
Luke  says:  "Now  in  the  fifteenth  year  of  the 
reign  of  Tiberius  Caesar,  Pontius  Pilate  being 
governor  of  Judea,  and  Herod  being  tetrarch  of 
Galilee,  and  his  brother  Philip  tetrarch  of  the 
region  of  Ituraea  and  Trachonitis,  and  Lysanias 
tetrarch  of  Abilene,  in  the  high-priesthood  of 
Annas  and  Caiaphas,  the  word  of  the  Lord  came 
unto  John  the  son  of  Zacharias  in  the  wilder- 
ness."18 Then  Luke  describes  the  preaching  of 
John,  the  coming  of  Jesus  to  be  baptized,  and 
the  subsequent  beginning  of  the  ministry  of 
Jesus.  The  extreme  care  which  the  writer  ap- 
pears to  take  in  designating  the  time  falls  under 
grave  suspicion  when  we  read  that  Annas  was 
high  priest,  for  he  had  been  deposed  some  years 
earlier,  and  now  Caiaphas,  his  son-in-law,  occu- 
pied the  position.  Nor  was  this  a  mere  temporary 
slip,  for  Luke  makes  the  same  mistake  again,19 

IB  Lk.  Ill,  1-2. 
s,  IV,  6. 


50  THE  PROSECUTION  OF  JESUS 

greatly  to  the  amazement  of  Eusebius,20  who 
cites  Josephus  to  show  that  Luke  was  in  error.21 
But  it  should  be  noted  that  Eusebius  had  no  hesi- 
tation in  accepting  the  remainder  of  Luke's 
chronological  data. 

No  conclusion  as  to  the  date  can  be  drawn 
from  the  collocation  of  the  names  of  the  various 
governors,  for  they  overlapped  many  years.  The 
one  definite  date  is  the  phrase  "the  fifteenth  year 
of  Tiberius  Caesar."  Tiberius  succeeded  Augus- 
tus on  August  19,  A.  D.  14,  and  his  fifteenth 
year  would  extend  from  August  19,  28,  to 
August  19,  29.  During  this  year,  then,  came 
the  call  of  John  to  his  work.  Soon  thereafter 
occurred  the  baptism  of  Jesus,  and,  following  the 
baptism  at  no  long  interval,  the  public  ministry 
began.  The  first  passover  after  the  beginning 
of  the  ministry  would  be  in  the  spring  of  29  or 
30,  and  the  crucifixion,  three  years  later,  would 
fall  in  32  or  33.  This  is  the  interpretation  which 
was  given  to  the  passage  by  the  early  church,  for 
Eusebius  says  that  the  fifteenth  year  of  Tiberius 
was  also  the  fourth  of  the  administration  of 
Pilate,  and  that  would  mean  during  the  period 
from  the  end  of  29  to  the  end  of  30.22  In  two 
places  Eusebius  gives  a  careful  discussion  of  the 
chronology  of  the  period,  in  both  of  which  he  says 


Demonst.  Evang.  398d. 

21  Jos.  Ant.  XVIII,  34;  cp.  Nicephorus,  Chron.  Comp.  325C. 

22  H.  E.  I,  10,  1. 


THE  DATE  OF  THE  TRIAL  51 

that  this  year  was  just  548  years  after  the  second 
year  of  Darius.23  The  second  year  of  Darius  was 
520  B.  C.,  and  548  years  later  would  be  A.  D.  29. 
But  this  interpretation  of  the  phrase  in  Luke 
is  not  accepted  by  New  Testament  scholars  in 
general,  for  the  reason  that  it  conflicts  with  the 
date  commonly  adopted  as  that  of  the  crucifixion. 
Consequently  they  are  forced  to  find  some  other 
meaning  for  the  word  "reign"  in  the  passage.  It 
is  claimed  that  the  reference  is  not  to  the  fifteenth 
year  of  the  sole  sovereignty  of  Tiberius,  but  to 
the  fifteenth  year  after  the  beginning  of  the  co- 
regency  of  Augustus  and  Tiberius  in  the  admin- 
istration of  the  Empire.  The  Roman  historians 
agree  that  a  special  position  was  given  to  Ti- 
berius by  the  Senate,  upon  motion  of  Augustus, 
more  than  two  years  before  he  actually  ascended 
the  throne.24  When  Tiberius  returned  from  his 
victorious  campaigns  against  the  Dalmatians,  he 
was  granted  a  triumph,  which  was  celebrated  on 
Jan.  16,  A.  D.  12.  The  various  powers  given  to 
him  by  senatorial  decree  were  conferred,  accord- 
ing to  Velleius,  before  the  return  of  Tiberius  to 
Rome,  that  is,  late  in  the  year  11.  But  according 
to  Suetonius  they  were  conferred  after  his  return, 
that  is,  some  time  in  the  year  12.  Tiberius  was 

wChronikon,  59,  29-33  Karst;  Praep.  Evang.  483b-d;  cp.  Greek 
Chronica  under  the  year  A.  D.  29. 

24  Suet.  Aug.  97,  1;  Tib.  21,  1;  Veil.  Paterc.  II,  121,  1;  Tac. 
Ann.  I,  7,  4. 


52  THE  PROSECUTION  OF  JESUS 

given  the  title  of  "colleague  in  imperial  power," 
and  was  especially  associated  with  Augustus  in 
administering  the  provinces.  It  is  from  this  time 
that  many  scholars  date  the  "reign"  (rjyepovia) 
of  Tiberius. 

But  the  Roman  historians,  Tacitus,  Suetonius, 
Eutropius,  Dio  Cassius  and  Xiphilinus,  are 
unanimous  in  considering  that  the  reign  of  Ti- 
berius began  with  the  death  of  Augustus,  and 
not  with  the  time  at  which  special  titles  and  func- 
tions were  conferred  upon  him  by  the  Senate.25 
It  has,  however,  been  held  that,  since  the  author- 
ity of  Tiberius  in  the  provinces  originated  nearly 
three  years  earlier,  the  provincials  may  have 
reckoned  his  reign  from  this  earlier  date.  Of 
this  there  is  not  the  shadow  of  evidence.  If  it 
were  so,  Josephus  and  Philo,  the  famous  Jewish 
historians,  would  show  some  indication  of  it,  but 
several  passages  prove  that  they  adopt  exactly 
the  same  date  for  the  beginning  of  the  reign  of 
Tiberius  as  do  the  Roman  historians.26  In  one 
of  these  passages,  Josephus  mentions  an  associa- 
tion of  Augustus  and  Antony,  but  has  nothing 
to  say  about  the  co-regency  with  Tiberius. 

The  evidence  offered  by  the  papyri  and  in- 
scriptions for  the  date  of  the  beginning  of  the 

2»Tac.  Ann.  IV,  1;  Suet.  Tib.  73;  Eutrop.  VII,  11,  3;  Dio  Cass. 
LVIII,  24;  LVIII,  28,  5;  Xiph.  141,  10. 

26  Jos.  Ant.  XVIII,  32;  177;  224;  Bell.  II,  180;  Philo,  Leg.  ad 
Gaium  21 ;  37. 


THE  DATE  OF  THE  TRIAL  53 

reign  of  Tiberius,  and  for  its  duration,  is  slight, 
but  the  evidence  that  does  exist  all  points  defi- 
nitely in  the  same  direction  as  the  evidence  de- 
rived from  the  historians.  One  badly  spelled 
papyrus  gives  the  reign  of  Tiberius  as  lasting 
twenty-two  years.  Many  of  them  mention  events 
as  occurring  in  certain  years  of  the  reign  of 
Tiberius,  but  no  one  of  these  contains  a  numeral 
larger  than  twenty-three.  Similarly  in  a  series 
of  ostraca  of  the  same  nature  the  latest  in  the 
reign  of  Tiberius  is  dated  in  his  twenty-third 
year.  There  is  one  papyrus  which  contains  con- 
clusive evidence  that  the  Egyptians  computed 
the  reign  of  Tiberius  from  14,  and  not  from  11 
or  12.  Upon  the  death  of  Augustus  the  month 
Thoth  received  a  new  name,  Sebastos,  in  his 
honor.  In  this  papyrus  events  are  said  to  have 
occurred  in  the  month  Sebastos  in  the  second  and 
third  years  of  Tiberius.27  If  the  writer  had  in- 
tended to  say  that  they  occurred  in  the  second 
or  third  year  after  the  beginning  of  the  regency, 
he  could  not  have  used  the  name  Sebastos,  for 
that  would  be  prior  to  the  death  of  Augustus. 
The  evidence  in  the  inscriptions  is  still  more 
meager,  but  there  are  two  or  three  which  refer 
to  events  in  the  reign  in  such  a  way  as  to  prove 
that  the  year  14  was  taken  as  the  beginning  of 
the  reign.28 

27  P.  B.  M.  892. 

zsCagnat  et  Lafaye,  Inscr.  Oraec.  ad  Res  Rom.  Pert.,  I,  1235; 
III,  933;  C.  I.  L.  XII,  406. 


54  THE  PROSECUTION  OF  JESUS 

Again,  it  is  claimed  that  the  word  for  "reign" 
(rjyepovia)  chosen  by  Luke  is  not  equivalent  to 
the  ordinary  words  for  "royal  power"  or  "sole 
sovereignty"  (^ovap^uji,  ^SacrtXeta),  and  that  one 
of  these  words  would  have  been  chosen  if  Luke 
had  intended  to  indicate  a  certain  year  of  the 
imperial  power  of  Tiberius,  computed  from  the 
death  of  Augustus,  for  these  words,  the  critics 
say,  are  appropriate  to  the  sole  rule  of  an  em- 
peror, while  the  word  in  the  passage  of  Luke  is 
not.  It  is  indeed  true  that  ^ye/uovta  is  broader 
in  meaning  than  the  other  words,  and  may  denote 
various  degrees  of  authority,  and  various  kinds 
of  functions.  Not  infrequently  it  is  found  in 
historians  to  define  the  power  of  a  provincial  gov- 
ernor. But  it  occurs  very  often  in  the  meaning 
of  imperial  power.  For  example,  it  is  used  of 
Augustus  by  Eusebius ;  of  Tiberius  by  Eusebius, 
Dio  Cassius  and  Josephus;  of  Caligula  by  Dio 
Cassius,  Philo  and  Josephus ;  of  Claudius  by  Dio 
Cassius,  Josephus  and  Xiphilinus;  of  Nero  by 
Josephus  and  Zonaras;  of  Titus  by  Xiphilinus 
and  Zonaras;  and  of  Domitian  by  Xiphilinus.29 
It  is  quite  useless,  therefore,  to  cite  this  word  as 
evidence  for  an  understanding  of  the  verse  of 
Luke  that  is  different  from  the  natural  meaning. 

29Euseb.  H.  E.  I,  9,  2;  II,  4,  1;  Dio  Cass.  LVIII,  24;  LIX,  6; 
LX,  15,  6;  Jos.  Ant.  XVIII,  33;  224;  238;  XIX,  201;  Bell.  II, 
180;  204;  248;  Philo,  Leg.  21;  Xiph.  147,  6;  211,  28;  217,  27;  Zon. 
XI,  12;  18. 


THE  DATE  OF  THE  TRIAL  55 

The  last  argument  advanced  by  critics  in  sup- 
port of  the  view  that  Luke  meant  the  year  26 
when  he  wrote  this  verse  is  that  he  had  before 
him,  while  he  was  writing,  the  example  of  Titus, 
who  was  associated  with  his  father  Vespasian  in 
the  imperial  power,  just  as  Tiberius  had  been 
associated  with  Augustus.  Seeing  an  instance 
of  joint  sovereignty,  he  naturally  adopted  the 
method  of  dating  the  reign  of  Tiberius  which 
would  conform  to  a  similar  situation.  That 
Titus  occupied  a  peculiar  and  exalted  position 
admits  of  no  doubt.  It  is  partially  confirmed 
by  Tacitus,30  and  is  stated  definitely  by  Philo- 
stratus.31  The  latter  mentions  that  at  the  close 
of  the  Judean  War  Titus  returned  to  Rome  with 
imperial  title  "to  share  in  the  government  with 
his  father."  He  also  quotes  a  letter  from  Titus, 
in  which  he  says:  "I  am  called  to  govern  before 
I  know  how  to  be  governed."  There  are  Roman 
coins  existing,  on  which  both  Vespasian  and 
Titus  are  called  Imperator,  and  two  Greek  coins, 
one  from  Smyrna  and  one  from  Caesarea  in  Cap- 
padocia,  on  which  they  are  called  "Emperors." 
But  until  the  death  of  Vespasian  the  title  always 
precedes  the  name  of  Vespasian  but  follows  that 
of  Titus,  showing  that  a  distinction  was  drawn 
between  the  two.  The  same  difference  is  noted 
in  the  Greek  and  Latin  inscriptions.  In  spite 

so  Hist.  II,  82;  IV,  52. 
si  Vit.  Apoll.  VI,  30. 


56  THE  PROSECUTION  OF  JESUS 

of  the  close  association  of  the  two  the  historians 
always  date  the  reign  of  Titus  from  the  time  of 
his  father's  death.32  The  powers  granted  to 
Titus,  according  to  Suetonius,33  were  far  greater 
than  those  granted  to  Tiberius,  and  yet  his  reign 
is  not  dated  from  the  time  of  his  association  with 
his  father.  In  the  face  of  all  this  evidence,  it 
must  be  maintained  that  neither  Luke  nor  any 
other  historian  could  adopt  a  method  of  chro- 
nology all  his  own,  to  the  confusion  of  his  readers. 

The  opinion,  therefore,  that  this  verse  of  Luke 
refers  to  the  year  26,  is  contrary  to  the  view  of 
the  historians  with  reference  to  the  date  of  the 
beginning  of  the  reign  of  Tiberius,  is  contrary 
to  the  opinion  of  the  early  church,  is  contrary 
to  the  opinion  of  Josephus  and  Philo,  is  refuted 
by  the  evidence  of  the  papyri  and  inscriptions,  is 
not  supported  by  the  use  of  the  word  "reign"; 
and  any  slight  support  it  may  derive  from  the 
similarity  of  the  positions  of  Titus  and  Tiberius 
is  nullified  by  the  evidence  for  the  dating  of  the 
beginning  of  the  reign  of  Titus.  The  verse  of 
Luke  must  be  interpreted  in  the  natural  way, 
which  renders  the  evidence  complete  that  the 
ministry  of  Jesus  could  not  have  begun  until  the 
year  29  at  the  earliest. 

An  incident  occurred  during  the  trial  of  Jesus 

32  Suet.  Tit.  11;  Eutrop.  VII,  22;  Xiph.  210,  26;  211,  29;  216, 
23;  Zon.  XI,  18. 

33  Tit.  6. 


THE  DATE  OF  THE  TRIAL  57 

which  offers  strong  confirmation  of  the  conclu- 
sions reached  from  an  analysis  of  Luke's  dating 
of  the  beginning  of  the  ministry  of  John  the 
Baptist.  Since  this  incident  seems  never  to  have 
been  utilized  in  this  connection,  it  will  be  treated 
at  some  length.  When  the  proceedings  against 
Jesus  before  the  Sanhedrin  had  been  finished,  his 
accusers  led  him  to  Pilate,  the  procurator,  in  the 
hope  that  the  Roman  official  might  be  induced 
to  execute  a  death  sentence  upon  the  accused. 
Pilate,  about  to  render  his  decision,  asked  the 
people  who  were  assembled  before  him  whether 
on  this  occasion  of  the  passover  he  should  pardon 
Jesus  or  Barabbas.  Each  of  the  Gospels  states 
clearly  that  Pilate  had  the  habit  of  releasing  one 
prisoner  each  year  at  the  time  of  the  passover. 
Since  there  is  no  indication  that  any  other  gov- 
ernor of  Judea  ever  exercised  the  right  of  pardon 
at  this  festival,  it  is  generally  felt  that  the  custom 
was  confined  to  Pilate.  Some,  however,  have 
held  that  the  release  of  a  prisoner  was  an  ancient 
Hebrew  custom,  inaugurated  in  commemoration 
of  the  escape  of  the  Hebrews  from  their  bondage 
in  Egypt,  and  that  Pilate  merely  followed  tradi- 
tion in  order  to  please  his  subjects.  But  there 
is  absolutely  no  evidence  that  the  pardoning  of 
a  prisoner  had  ever  occurred  before  the  time  of 
Pilate.  It  would  certainly  have  been  mentioned 
somewhere  in  the  Old  Testament  if  it  were  a  rite 
connected -with  the  celebration  of  the  passover. 


58  THE  PROSECUTION  OF  JESUS 

A  matter  so  likely  to  induce  a  remembrance  of 
the  most  vital  incident  in  Hebrew  national  de- 
velopment could  never  have  passed  unnoticed  in 
the  historical  or  even  in  the  poetical  portions  of 
the  literature  of  that  nation.  For  the  same 
reason  the  sections  of  the  Talmud  which  deal 
with  the  passover  would  have  told  just  how  the 
rite  was  performed,  and  at  what  hour  on  the  day 
of  the  passover  it  occurred.  But  there  is  not  a 
word  about  it,  although  the  Talmud  contains  a 
full  description  of  the  ceremonies  from  hour  to 
hour,  and  tells  why  each  thing  was  done. 

Others  regard  this  practice  as  an  indication  of 
the  considerate  government  by  the  Romans  in 
general,  for  they  allowed  native  customs  to  sur- 
vive, and  even  instructed  governors  of  provinces 
to  enforce  the  native  customs.  If  this  had  been 
the  case,  and  it  had  been  adopted  by  the  Romans 
prior  to  the  time  of  Pilate,  it  is  certain  that 
Josephus  would  have  mentioned  it  in  his  history 
of  the  period.  Nor  would  it  have  been  omitted 
by  Philo,  when  he  was  enumerating  all  the  favors 
received  by  the  Jews  from  the  Romans.34 

It  has  also  been  thought  that  the  pardoning 
of  a  prisoner  in  Judea  was  but  a  transfer  of  a 
Roman  custom  to  the  provinces,  and  that  it 
originated  with  the  practice  of  setting  prisoners 
free  at  the  "lectisternium."  This  festival  oc- 
curred first  in  399  B.  C.,  and  Livy  mentions  that 

.  ad  Gaium,  21-38. 


THE  DATE  OF  THE  TRIAL  59 

during  the  days  of  the  festival  prisoners  were 
free,  but  on  condition  that  they  return  to  prison 
at  the  termination  of  the  feast.35  Obviously  this 
is  not  a  parallel  to  the  action  of  Pilate,  for  no 
person  can  believe  that  Pilate  expected  the  re- 
leased prisoners  to  return  to  prison  at  the  end 
of  the  passover  period.  A  further  difference 
consists  in  the  fact  that  the  release  by  Pilate 
seems  to  have  occurred  each  year,  while  the 
"lectisternium"  was  celebrated  only  rarely,  nor 
is  there  any  indication  of  a  pardoning  except  at 
the  time  of  its  first  occurrence. 

The  accuracy  of  the  accounts  of  this  episode  in 
the  Gospels  has  sometimes  been  called  into  ques- 
tion, on  the  ground  that  the  governor  of  a  prov- 
ince did  not  possess  the  power  of  pardon.  On 
the  other  hand,  some  writers  accept  the  accuracy 
of  the  accounts,  but  hold  that  the  release  of  a 
prisoner  was  one  more  illegality  committed  by 
Pilate  on  this  occasion.  This  question  will  be 
examined  later,  where  it  will  be  shown  that  the 
governor  did  not  have  the  right  to  change  a  de- 
cision once  made,  but  could  bring  about  the  with- 
drawal of  a  suit  after  it  had  begun,  but  before 
a  decision  had  been  rendered.  Decision  had  not 
yet  been  rendered  in  the  case  of  either  Jesus  or 
Barabbas,  so  that  the  release  was  not  of  the 
nature  of  a  pardon,  but  involved  merely  the  stop- 
ping of  the  action  already  begun. 

ss  Livy  V,  13,  5-8. 


60  THE  PROSECUTION  OF  JESUS 

If  this  is  a  correct  understanding  of  the  situa- 
tion at  the  time  of  the  trial  of  Jesus,  the  incident 
of  the  release  of  Jesus  or  Barabbas  could  not 
have  occurred  until  Pilate  had  been  in  office  for 
several  years.  Matthew  says :  "Now  at  the  feast 
the  governor  was  wont  to  release  unto  the  multi- 
tude one  prisoner,  whom  they  would."36  The 
word  governor  refers  only  to  the  then  governor, 
Pilate,  and  he  had  the  habit  (etwflei)  of  releasing 
one  whom  they  chose  at  the  passover  each  year 
(rj0e\ov,  the  imperfect).  Mark  says:  "Now  at 
the  feast  he  used  to  release  unto  them  one  pris- 
oner, whom  they  asked  of  him."37  That  is,  "he 
used  to  release"  (aTreXvev,  the  imperfect)  one 
whom  they  on  each  occasion  asked  of  him 
(TraprfrovvTo,  the  imperfect).  The  parallel  pas- 
sage in  Luke  is  lacking  in  some  manuscripts,  and 
is  omitted  by  Westcott  and  Hort,  Nestle,  the 
American  Revised  Version,  and  other  modern 
authorities.  It  reads:  "Now  he  must  needs  re- 
lease unto  them  at  the  feast  one  prisoner."38 
Luke  regards  it  as  a  fixed  habit,  and  of  such 
recognized  standing  (£xev>  the  imperfect)  that 
the  people  felt  that  they  had  a  right  (avdyicr), 
a  very  strong  word)  to  expect  the  pardon  of  a 
prisoner.  The  use  of  the  imperfect  tense  in  all 
of  these  passages  constitutes  the  significant  ele- 

se  Mt.  XXVII,  15. 
37  Mk.  XV,  6. 
88  Lk.  XXIII,  17. 


THE  DATE  OF  THE  TRIAL  61 

ment.  The  phraseology  of  all  three  indicates 
clearly  that,  not  only  did  Pilate  have  this  habit, 
but  that  it  had  assumed  the  proportions  of  a 
habit  before  the  year  of  the  trial.  The  statement 
of  Luke  (its  occurrence  in  some  manuscripts  and 
its  resemblance  to  a  later  passage  in  Mark39 
prove  that  it  has  some  value)  makes  it  necessary 
to  believe  that  the  habit  had  been  in  use  so  long 
that  Pilate  was  forced  to  continue  it,  in  order  to 
satisfy  the  Jews.  This  conclusion  is  corroborated 
by  the  parallel  passage  in  John,  where  Pilate  is 
represented  as  addressing  the  Jews  directly,  to 
discover  which  prisoner  they  wished  him  to  re- 
lease. His  words  are:  "But  ye  have  a  custom, 
that  I  should  release  unto  you  one  at  the  pass- 
over."40  He  could  not  have  used  these  words 
unless  he  had  pardoned  prisoners  several  times 
before  this  particular  incident.  He  also  seems 
to  claim  that  the  custom  had  arisen  with  himself, 
for  he  says  "that  I  should  release,"  he  does  not 
say  "that  the  governor  should  release." 

How  many  years  are  required  in  order  to  es- 
tablish such  a  precedent  it  would  be  difficult  to 
say.  Josephus  informs  us  that  Pilate  spent  ten 
years  as  procurator  in  Judea,  that  he  was  recalled 
by  Tiberius,  that  he  traveled  in  haste,  but  did  not 
reach  Rome  until  after  the  death  of  Tiberius,41 


39  Mk.  XV,  15. 
<o  jn.  XVIII,  39. 
«  Ant.  XVIII,  89. 


62  THE  PROSECUTION  OF  JESUS 

which  occurred  in  March  of  the  year  A.  D.  37. 
More  precise  information  is  given  by  Eusebius: 
"Josephus  shows  that  Pontius  Pilate  was  ap- 
pointed governor  of  Judea  in  the  twelfth  year 
of  Tiberius,  and  that  he  remained  there  for  ten 
whole  years,  until  the  death  of  Tiberius."42  The 
ten  full  years  must,  therefore,  have  begun  only 
toward  the  end  of  A.  D.  26,  certainly  consider- 
ably later  than  the  passover  of  that  year.  It  fol- 
lows that  the  passover  of  27  was  the  earliest  time 
at  which  the  right  of  pardon  could  have  been 
exercised,  but  it  is  impossible  to  believe  that  he 
instituted  the  practice  so  soon  after  his  arrival. 
The  pages  of  Josephus  and  Philo  are  filled 
with  hatred  of  Pilate  on  account  of  the  avarice 
and  bloodthirstiness  he  displayed  in  Judea.  The 
first  part  of  his  administration  was  noted  for 
various  acts  which  aroused  all  the  hostility  of  the 
Jewish  nation.  He  commanded  his  troops  to 
appear  in  Jerusalem  with  standards  bearing  the 
image  of  the  emperor  Tiberius;  he  plundered 
the  treasure  of  the  temple  to  get  money  for  the 
construction  of  an  aqueduct  into  Jerusalem;  he 
put  certain  Galileans  to  death,  apparently  at  the 
altar  where  they  were  offering  sacrifice;  and  he 
increased  the  taxes.  All  of  these  things  followed 
one  another  in  succession  after  his  arrival  in 
Judea.  It  may  be  suggested  that  Pilate  found 
the  people  constantly  on  the  verge  of  rebellion 
42  H.  E.  i,  9,  2. 


THE  DATE  OF  THE  TRIAL  63 

as  a  result  of  these  incidents,  and  attempted  to 
gain  their  favor  by  an  act  of  clemency.  This  will 
explain  why  the  people  preferred  to  have  Barab- 
bas  pardoned  rather  than  Jesus,  for  Barabbas 
was  a  political  offender,  who  had  the  sympathy 
of  all  who  were  hostile  to  the  governor  and  the 
Roman  supremacy.  It  will  also  explain  the  bar- 
renness of  the  account  of  Pilate's  administration 
during  its  middle  period  in  the  history  of  Jo- 
sephus,  for  he  was  probably  cautious  about  offer- 
ing further  offense  to  the  feelings  of  his  subjects. 
If  this  interpretation  is  correct,  it  becomes  al- 
most certain  that  the  first  instance  of  clemency 
could  not  have  occurred  until  the  third  passover 
after  the  arrival  of  Pilate  in  Judea.  That  would 
be  in  the  spring  of  29.  Then  it  seems  reasonable 
to  think  that  the  system  must  have  been  in  opera- 
tion for  three  years,  at  the  very  least,  before  the 
Jews  would  be  justified  in  considering  it  a  right 
upon  which  they  could  fully  count  at  each  pass- 
over.  The  year  of  the  trial  and  crucifixion, 
therefore,  when  the  choice  between  Jesus  and 
Barabbas  was  granted,  cannot  be  placed  earlier 
than  32,  and  more  probably  not  earlier  than  33. 
Efforts  have  been  often  made  to  utilize  three 
other  passages  in  the  New  Testament  in  support 
of  the  traditional  view  of  the  dates  of  the  begin- 
ning and  the  conclusion  of  the  public  work  of 
Jesus.  These  are  the  passages  mentioning  the 
age  of  Jesus  at  the  beginning  of  his  ministry,  the 


64  THE  PROSECUTION  OF  JESUS 

time  occupied  in  the  building  of  the  temple,  and 
the  date  of  the  beheading  of  John  the  Baptist. 
The  first  two  of  these  will  be  shown  to  be  of  no 
assistance  whatever  in  helping  to  determine  the 
chronology  of  this  period,  while  the  third,  to 
which  much  attention  has  been  given  by  scholars, 
is  extremely  uncertain.  Existing  evidence,  apart 
from  the  New  Testament,  is  in  favor  of  placing 
the  beheading  of  John  some  time  after  the  latest 
date  that  can  possibly  be  assigned  for  the  cruci- 
fixion of  Jesus.  Since  the  evidence  is  discordant, 
the  event  must  be  excluded  from  all  consideration. 
The  first  of  the  three  indications  of  date  is  the 
age  of  Jesus  at  the  beginning  of  the  ministry. 
Luke  says:  "And  Jesus  himself,  when  he  began 
to  teach,  was  about  thirty  years  of  age."43  This 
was  for  many  centuries  understood  to  mean  that 
Jesus  was  just  entering  upon  his  thirtieth  year, 
and  the  passage  was  translated  in  the  King 
James  version:  "And  Jesus  began  to  be  about 
thirty  years  of  age."  It  is  now  generally  ad- 
mitted that  the  older  translation  was  incorrect, 
for  the  combination  "began  to  be  about"  is  ut- 
terly meaningless,  and  is  an  impossible  rendering 
of  the  Greek  original.  The  word  "began"  is  now 
commonly  understood  to  mean  "entering  upon 
his  ministry,"  which  is  the  interpretation  of  the 
same  word  in  three  other  passages  written  by 

43  Lk.  Ill,  23. 


THE  DATE  OF  THE  TRIAL  65 

Luke.44  The  one  indication  of  time  left  in  the 
clause  is  the  phrase  "about  thirty  years."  Those 
who  hold  that  the  ministry  began  in  26  think  that 
"about  thirty"  means  exactly  30,  while  the  theory 
that  the  ministry  began  in  29  assumes  that  he  was 
then  33.  Even  a  superficial  study  of  Greek, 
Roman  and  Hebrew  biography  reveals  a  great 
indefiniteness  in  statements  of  age.45  The  Greeks 
and  the  Romans  considered  that  a  man  reached 
maturity  at  the  age  of  40,  and  computed  the  date 
of  his  birth  from  some  great  event  in  which  he 
actively  participated.46  The  Hebrews  placed  the 
age  of  maturity  at  30,  and  that  is  undoubtedly 
the  meaning  of  Luke's  statement.  The  Hebrews 
furthermore  used  the  numeral  three  and  its 
multiples,  including  thirty,  indefinitely,  as  may 
be  seen  in  many  of  the  56  places  in  the  Bible  in 
which  the  number  thirty  occurs.  Consequently, 
even  if  Luke  had  used  the  word  thirty  by  itself, 
he  would  probably  not  intend  to  be  exact,  and 
when  he  added  the  indefinite  "about"  he  made 
the  passage  incapable  of  service  in  a  chrono- 
logical study. 

The  second  of  the  three  passages  is  in  John: 
"Forty  and  six  years  was  this  temple  in  building, 
and  wilt  thou  raise  it  up  in  three  days?"47  This 

4*  Lk.  XXIII,  5;  Acts  I,  22;  X,  37. 

45  E.  g.  Plut.  Per.  16,  2 ;  Cic.  de  Sen.,  passim. 

46  Cell.  XV,  23,  2. 

47  Jn.  II,  20. 


66  THE  PROSECUTION  OF  JESUS 

forms  part  of  the  conversation  between  Jesus  and 
certain  of  the  Jews  at  the  time  of  the  passover 
next  following  the  beginning  of  the  ministry. 
Jesus  had  said  that  if  the  temple  were  destroyed 
he  could  rebuild  it  in  three  days.  One  of  his 
hearers  expressed  astonishment,  for  it  had  taken 
no  less  than  forty-six  years  to  build  the  temple, 
and  it  was  impossible  that  it  should  be  rebuilt  in 
three  days.  The  temple  then  standing  in  Jerusa- 
lem was  the  one  begun  by  Herod  the  Great  in 
19  B.  C.,  but  not  completed  in  accordance  with 
the  original  plans.48 

Many  think  that  this  verse  contains  proof  that 
the  conversation  took  place  just  at  the  time  when 
the  forty-six  years  were  at  an  end.  With  this  in 
view  many  translations  of  the  verse  are  given, 
of  which  the  following  is  typical:  "Forty-six 
years  is  it  since  the  building  of  this  temple  began, 
[and  it  is  not  yet  finished] ."  If  this  is  a  correct 
rendering,  the  conversation  took  place  in  A.  D. 
27,  exactly  in  accordance  with  the  accepted 
chronology.  But  it  cannot  be  correct,  for  the 
use  of  the  dative  (reo-o-apaKovTa  /ecu  e£  er€<m>) 
to  express  duration  of  time  is  almost  without 
parallel,  and  when  this  dative  is  combined  with 
the  aorist  tense  (oi/coSo^if^)  the  durative  idea 
in  such  a  translation  as  that  given  becomes  im- 
possible. Viewed  from  the  historical  standpoint 

48  Jos.  Ant.  XV,  380.     The  contradictory  statement  in  Bell.  I, 
401,  is  a  mere  blunder. 


THE  DATE  OF  THE  TRIAL  67 

the  verse  cannot  be  translated  in  this  way.  When 
it  was  determined  to  erect  the  new  temple,  Herod 
secured  the  services  of  one  thousand  priests  to 
perform  the  labor,  and  the  sanctuary  was  com- 
pleted in  a  year  and  six  months,  while  the 
porticoes  and  outer  courts  were  finished  in  eight 
years,  at  the  end  of  which  time  a  great  celebra- 
tion took  place,  out  of  joy  at  the  completion  of 
the  work.49  Although  the  building  was  not 
erected  in  accordance  with  the  original  specifica- 
tions, and  was  found  to  be  faulty  in  construction, 
there  is  no  evidence  that  further  work  was  done 
upon  it  until  the  reign  of  Agrippa  II.  Conse- 
quently a  translation  such  as  that  just  given  finds 
no  historical  support. 

A  very  plausible  suggestion  was  made  by 
Abbott  twenty  years  ago,  to  the  effect  that  the 
conversation  had  no  reference  to  the  temple  of 
Herod  at  all,  but  to  the  second  temple,  that  of 
Zerubbabel.  Heracleon  and  the  writer  of  the 
Acts  of  Pilate  thought  that  the  temple  of  Solo- 
mon was  meant,  but  Origen  raised  the  objection 
that  the  temple  of  Solomon  was  built  in  seven 
years.50  Neither  did  he  think  that  it  could  refer 
to  the  second  temple,  because  he  did  not  under- 
stand that  this  temple  required  forty-six  years 
to  build.  But  there  is  ample  evidence  that  there 
was  a  definite  tradition  that  it  took  exactly  that 

«  Jos.  Ant.  XV,  420-421. 

soActa  Pilati,  IV;  Origen,  Comm.  II,  p.  187. 


68  THE  PROSECUTION  OF  JESUS 

number  of  years.  Eusebius  says  that  it  was 
built  "in  forty-six  years  altogether  from  the  first 
year  of  Cyrus,"51  and  Georgius  Syncellus  ap- 
proves of  this,  saying:  "after  forty-six  years  the 
work  was  completed,  in  the  reign  of  Darius,  son 
of  Hystaspes."52  Many  conflicting  statements 
are  made,  both  in  the  Old  Testament  and  in  early 
Christian  writings,  about  the  date  of  beginning 
and  that  of  finishing  the  second  temple,  but  the 
two  most  careful  investigators  were  distinctly  of 
the  opinion  that  it  required  just  forty-six  years. 
The  one  objection  to  this  understanding  of  the 
verse  is  the  word  "this"  in  the  text.  But  the 
same  word  is  used  by  Haggai  and  the  writer  of 
the  Acts  of  Pilate  to  denote  the  first  temple,53 
and  Josephus  says  that  the  Jews  still  regarded 
their  temple  as  that  of  Solomon.54  For  many 
reasons,  therefore,  this  verse  gives  no  indication 
of  the  time  at  which  the  conversation  took  place, 
and  offers  no  clue  to  the  date  of  the  beginning 
of  the  ministry. 

By  way  of  summary,  it  is  clear  that  there  are 
but  three  indications  of  time  in  the  Gospel  narra- 
tives from  which  deductions  can  legitimately  be 
made :  First,  the  ministry  of  Jesus  began  at  the 
end  of  29  or  in  30.  An  impartial  translation  of 

61  Ap.  Georg.  Sync.  II,  81. 

62  Georg.  Sync.  235  B. 

63  Haggai,  II,  3;  Ada  Pilati,  IV. 

64  Jos.  Bell  I,  401. 


THE  DATE  OF  THE  TRIAL  69 

Luke's  phrase,  "in  the  fifteenth  year  of  Ti- 
berius," prohibits  the  assumption  of  an  earlier 
date.  The  duration  of  the  ministry  precludes 
the  placing  of  its  termination  before  32  or  33. 
Second,  the  releasing  of  prisoners  by  Pilate 
was  probably  not  introduced  until  the  year  29, 
and  several  years  must  have  elapsed  before  it 
could  have  become  a  fixed  habit.  The  passover 
at  which  a  choice  between  Jesus  and  Barabbas 
was  granted  cannot  be  placed  before  32  or  33. 
Third,  Jesus  was  crucified  on  Friday  in  pass- 
over  week.  The  evidence  of  the  Gospels  is  con- 
tradictory as  to  whether  this  event  took  place  on 
the  fourteenth  or  the  fifteenth  of  Nisan.  But 
the  fifteenth  occurred  on  Friday  during  this 
period  only  in  the  year  30,  and  that  year  is  im- 
possible. The  fourteenth  occurred  on  Friday  in 
the  year  33  only.  The  latter  accords  absolutely 
with  all  the  chronological  indications  in  the  four 
Gospels. 

Two  pieces  of  evidence,  therefore,  allow  a 
choice  between  the  years  32  and  33,  while  the 
third  combines  with  them  to  make  the  proof  con- 
vincing that  the  trial  and  crucifixion  occurred  on 
Friday,  Nisan  14,  in  the  year  A.  D.  33. 


CHAPTER  IV 

JESUS  ARRESTED  BY  THE  JEWISH  AUTHORITIES 

The  narratives  of  the  arrest  of  Jesus  in  the 
garden  of  Gethsemane  raise  but  one  important 
question — who  made  the  arrest.  If  they  were 
Roman  soldiers,  the  conclusion  must  be  that  the 
Roman  officials  had  caused  Jesus  to  be  arrested, 
on  the  ground  that  he  was  guilty  of  some  infrac- 
tion of  the  Roman  criminal  law.  If  they  were 
Jews,  the  conclusion  must  be  that  the  Jewish 
court  had  commissioned  these  persons  to  effect 
the  apprehension  of  Jesus,  and  bring  him  before 
the  Jewish  court.  In  that  case  the  arrest  might 
be  due  to  an  alleged  violation  of  either  the  Jew- 
ish or  the  Roman  criminal  law. 

If  any  one  of  the  four  Gospels  is  read  con- 
secutively up  to  the  point  at  which  the  story  of 
the  arrest  is  told,  the  reader  is  led  inevitably  to 
the  belief  that  the  writers  of  the  Gospels  wished 
to  convey  the  impression  that  the  Jewish  author- 
ities were  responsible  for  the  apprehension  and 
for  the  death  of  Jesus.  From  the  very  beginning 
of  the  ministry  the  Jews  are  represented  as  con- 
stantly watching  for  an  opportunity  of  bringing 

70 


JESUS  ARRESTED  71 

an  accusation  against  Jesus.  This  attitude  is 
mentioned  first  on  the  occasion  of  the  sabbath 
on  which  Jesus  healed  the  man  with  a  withered 
hand.  Those  who  were  then  hostile  to  him  asked: 
"Is  it  lawful  to  heal  on  the  sabbath  day?"  The 
object  assigned  for  their  asking  of  the  question 
is  "that  they  might  accuse  him."1  It  is  obvious 
that  the  accusation,  if  one  were  made,  would  be 
that  of  breaking  one  of  the  Jewish  ecclesiastical 
laws.  The  next  instance  mentioned  is  in  connec- 
tion with  the  question  about  the  proper  punish- 
ment to  be  inflicted  on  the  woman  taken  in 
adultery.2  The  purpose  of  the  question  was 
again  to  find  some  ground  for  bringing  a  charge 
against  him.  His  questioners  apparently  hoped 
to  discover  that  his  opinion  did  not  coincide  with 
that  of  the  Mosaic  code.  The  third  episode  of 
this  nature  is  concerned  with  a  question  about 
the  regulation  of  divorce  in  the  Jewish  law. 
"And  there  came  unto  him  Pharisees,  trying 
him,  and  saying,  Is  it  lawful  for  a  man  to  put 
away  his  wife  for  every  cause?"3  The  purpose 
here  was  precisely  the  same  as  that  which 
prompted  the  question  concerning  the  penalty 
for  adultery.  The  fourth  effort  made  to  entrap 
Jesus  consisted  in  putting  to  him  the  famous 
problem  about  the  propriety  of  paying  taxes  to 

i  Mt.  XII,  10;  cp.  Mk.  Ill,  2. 
2jn.  VIII,  6. 
3  Mt.  XIX,  3. 


72  THE  PROSECUTION  OF  JESUS 

the  Roman  Empire.4  Matthew  and  Mark  de- 
scribe the  object  in  the  minds  of  the  questioners 
only  in  the  most  general  terms,  but  Luke  gives 
very  explicitly  his  interpretation  of  their  motives : 
"that  they  might  take  hold  of  his  speech,  so  as 
to  deliver  him  up  to  the  rule  and  to  the  authority 
of  the  governor."  One  can  but  surmise  that  they 
had  failed  signally  in  their  efforts  to  lead  Jesus 
into  an  expression  of  opinion  on  the  Jewish  law 
that  could  be  made  the  basis  of  an  ecclesiastical 
trial  for  heresy,  and  therefore  they  endeavored 
to  induce  him  to  commit  himself  to  a  political 
doctrine  that  would  either  embroil  him  with  the 
Jewish  patriotic  party,  or  would  have  a  prosecu- 
tion in  the  Roman  court  as  its  necessary  result. 
At  the  same  time  it  is  said  that  they  intended  to 
"deliver  him  up,"  that  is  to  say,  they  intended 
to  arrest  Jesus  and  present  charges  against  him 
in  the  Roman  court.  They  did  not  expect  merely 
to  be  witnesses  against  him,  but  did  expect  to 
take  upon  themselves  the  function  of  prosecutor, 
provided  the  Romans  should  hold  Jesus  for  trial. 
The  four  occurrences  so  far  considered  are 
possibly  only  instances  of  individual  hostility, 
although  the  persons  who  criticized  Jesus  seem 
to  have  been  influential  in  their  communities,  and 
perhaps  even  in  the  nation.  It  may  be  the  case 
also  that  the  evangelists  have  exaggerated  the 
importance  of  the  efforts  of  these  persons  to 

*Mt.  XXII,  15;  Mk.  XII,  13;  Lk.  XX,  20. 


JESUS  ARRESTED  73 

place  Jesus  in  an  embarrassing  position.  His 
critics  may  have  had  no  motive  except  that  of 
discrediting  Jesus  in  the  eyes  of  those  who  heard 
his  preaching  or  saw  his  good  deeds.  But  it  is 
clear  that  the  writers  believed,  and  definitely 
sought  to  convince  their  readers,  that  these  in- 
dividuals desired  to  force  Jesus  to  cease  from  his 
activity,  and  were  ready  to  proceed  to  legal  action 
if  necessary  in  order  to  effect  their  purpose. 

The  efforts  to  terminate  the  public  teaching 
of  Jesus,  according  to  the  Gospels,  extended  far 
beyond  the  sporadic  attempts  of  individuals. 
His  activity  became  a  matter  of  national  interest, 
and  the  Sanhedrin  held  three  different  meetings 
to  consider  the  situation,  and  to  take  measures 
whereby  they  might  guard  against  the  rapidly 
increasing  influence  of  Jesus  among  the  people. 
The  first  meeting  held  by  that  body  is  obviously 
presupposed  by  John,  when  he  says  that  "the 
Jews  sought  to  kill  him."  The  blunt  remark  of 
John  is  doubtless  the  misleading  statement  of 
inexperience  and  partisanship.  One  should  not 
conclude  that  the  Sanhedrin  had  in  mind  any- 
thing except  a  genuine  investigation  and  trial  of 
Jesus,  but  John  has  reasoned  back  from  the 
history  of  the  later  relations  of  Jesus  and  the  San- 
hedrin and  has  attributed  to  the  Sanhedrin  inten- 
tions which  they  had  probably  not  yet  formed. 
And  yet  the  court  must  have  indicated  its  atti- 
tude with  considerable  definiteness,  for  Jesus, 


74  THE  PROSECUTION  OF  JESUS 

fearing  danger  to  himself,  left  Judea  and 
preached  for  some  time  in  Galilee.  No  doubt 
the  actual  resolution  adopted  at  the  meeting  was 
that  Jesus  should  be  arrested  when  a  suitable  op- 
portunity arose,  and  should  be  prosecuted  on  a 
charge  which  was  already  determined  upon  by 
the  Sanhedrin.  In  fulfilment  of  this  resolution, 
"the  chief  priests  and  the  Pharisees  sent  officers 
to  take  him."  But  for  some  reason  the  attempt 
to  arrest  Jesus  proved  a  failure,  although  a  sec- 
ond resolution  passed  at  the  same  meeting  must 
have  caused  a  severe  check  to  his  work:  "For  the 
Jews  had  agreed  already  that,  if  any  man  should 
confess  him  to  be  Christ,  he  should  be  put  out 
of  the  synagogue."5  This  means  that  a  decree 
of  excommunication  was  passed  against  the  fol- 
lowers of  Jesus.  There  were  three  forms  of 
excommunication,  and  this  was  the  form  inter- 
mediate in  point  of  severity,  called  execration, 
involving  complete  separation  from  the  religious 
and  social  life  of  the  community.  Probably  the 
most  severe  form  of  excommunication,  that  of 
death,  was  discussed  as  the  appropriate  penalty 
to  be  inflicted  upon  Jesus,  which  will  explain  the 
remark  of  John,  that  the  Jews  sought  to  kill 
Jesus.  At  the  second  meeting  of  the  Sanhedrin, 
still  some  time  before  the  last  passover,  "they 
took  counsel  that  they  might  put  him  to  death." 
That  is  to  say,  the  extreme  form  of  excommuni- 

sjn.  VII,  1;  32;  IX,  22. 


JESUS  ARRESTED  75 

cation  was  voted  against  Jesus.  This  is  no  doubt 
the  meeting  to  which  there  is  reference  in  all  four 
Gospels,  although  the  circumstances  under  which 
the  meeting  is  mentioned  do  not  harmonize  fully 
in  the  various  narratives.6  But  once  more  Jesus 
escaped,  and  it  is  quite  possible  that  it  was  neces- 
sary for  the  Sanhedrin  to  revert  to  the  subject 
in  a  still  later  meeting,  and  to  pass  a  further  de- 
cree: "Now  the  chief  priests  and  the  Pharisees 
had  given  commandment,  that,  if  any  man  knew 
where  he  was,  he  should  show  it,  that  they  might 
take  him."  Or  perhaps  this  resolution  was 
passed  at  the  same  meeting  at  which  excommuni- 
cation was  voted  against  Jesus. 

The  third  session  of  the  Sanhedrin  devoted  to 
the  case  of  Jesus  was  held  just  two  days  before 
the  last  passover  of  the  ministry.7  At  this  meet- 
ing the  discussion  no  longer  centred  about  the 
desirability  of  putting  Jesus  to  death,  but  "the 
chief  priests  and  the  scribes  sought  how  they 
might  put  him  to  death."  But  the  assumption 
often  made  that  they  intended  to  have  him  "mur- 
dered," or  put  to  death  without  due  process  of 
law,  is  quite  unwarranted.  It  is  unreasonable 
to  insist  that  the  writers  of  the  Gospels  mean 
something  outside  the  realm  of  law,  unless  they 
specifically  use  the  legal  term.  The  Sanhedrin 
had  already  decided  that  he  must  be  arrested  on 

e  Jn.  XI,  53;  XII,  42;  Mt.  XII,  14;  Mk.  Ill,  6;  Lk.  VI,  11. 
7Mt.  XXVI,  4;  Mk.  XIV,  2;  Lk.  XXII,  2. 


76  THE  PROSECUTION  OF  JESUS 

a  capital  charge,  and  be  put  on  trial,  and  now 
it  was  necessary  to  consider  only  the  method. 
Their  plan  was  to  accomplish  their  purpose  with 
the  greatest  possible  secrecy,  in  order  to  avoid 
an  outbreak  among  the  friends  and  followers  of 
Jesus,  who  would  be  assembled  in  Jerusalem  in 
large  numbers  for  the  passover:  "for  they  said, 
Not  during  the  feast,  lest  haply  there  shall  be 
a  tumult  among  the  people."  These  statements 
do  not  make  it  perfectly  clear  whether  it  was  the 
intention  of  the  Sanhedrin  to  hasten  and  accom- 
plish their  purpose  before  the  passover,  or 
whether  they  felt  that  it  would  be  safer  to  post- 
pone action  until  after  the  festival.  But  the 
impression  made  by  reading  the  passages  where 
the  meeting  is  mentioned  is  that  the  Sanhedrin 
had  determined  not  to  proceed  against  Jesus 
until  the  feast  was  ended.  If  that  was  the  case, 
they  were  induced  to  change  their  intention  sud- 
denly owing  to  the  appearance  of  Judas,  who 
offered  to  betray  his  master  to  them,  and  to  lead 
them  to  the  place  where  they  would  find  Jesus. 
This  undoubtedly  occurred  on  the  evening  fol- 
lowing the  meeting. 

During  the  night  of  Thursday  preceding  pass- 
over  week  the  arrest  of  Jesus  occurred,  probably 
about  thirty-six  hours  after  the  third  meeting  of 
the  Sanhedrin.  It  is  impossible  that  any  one 
should  read  the  story  of  the  four  Gospels  up  to 
this  point,  and  notice  all  the  preliminaries,  with- 


JESUS  ARRESTED  77 

out  expecting  to  find  that  the  arrest  was  planned 
and  executed  by  the  Sanhedrin.  One  is  pre- 
disposed to  believe  that  the  persons  making  the 
arrest  were  commissioned  by  the  Sanhedrin  to 
bring  Jesus  before  them.  Mark,  in  beginning 
his  account  of  the  arrest,  says  that  a  "multitude" 
(oxXo?)  came  to  the  garden,  led  by  Judas,  while 
Matthew,  possibly  with  a  view  to  making  the 
opposition  to  Jesus  seem  more  formidable,  says 
that  a  "great  multitude"  (oxXo?  TroXv?)  came 
against  him.8  This  crowd  came,  according  to 
Mark,  "from  the  chief  priests  and  the  scribes  and 
the  elders,"  and  with  this  Matthew  is  in  substan- 
tial agreement,  although  he  shows  a  slight  verbal 
difference.  The  three  classes  thus  specified  by 
Mark  composed  the  Sanhedrin,  frequently  called 
the  council  in  the  New  Testament.  Undoubtedly 
a  fair  interpretation  of  the  word  "from"  in  the 
text  of  Mark  and  Matthew  is  that  the  Sanhedrin 
sent  certain  persons  who  were  commissioned  to 
arrest  Jesus,  and  to  hold  him  subject  to  their 
disposal. 

Luke  introduces  a  new  group,  not  mentioned 
by  Mark  or  Matthew,  among  those  who  entered 
the  garden  in  search  of  Jesus,  for  he  says  not 
only  that  a  multitude  came,  but  that  among  them 
were  "the  chief  priests  and  captains  of  the  temple 
and  elders."9  But  it  is  extremely  improbable 

sMk.  XIV,  43;  Mt.  XXVI,  47. 
»  Lk.  XXII,  52. 


78  THE  PROSECUTION  OF  JESUS 

that  the  chief  priests  and  the  elders  would  be 
engaged  in  such  an  enterprise,  for  they  were 
-members  of  the  Sanhedrin,  the  highest  adminis- 
trative and  judicial  body  of  the  nation,  and  the 
presence  of  these  officials  in  the  "multitude" 
would  be,  to  say  the  least,  most  undignified.  Nor 
is  it  at  all  easy  to  see  in  what  way  the  members 
of  the  Sanhedrin  could  be  of  the  slightest  assist- 
ance in  making  an  arrest.  The  majority  of  the 
writers  on  the  subject  of  the  arrest,  anxious  to 
show  that  Jesus  was  the  victim  of  a  plot  con- 
trived by  the  Jewish  magistrates,  assert  that 
there  was  no  necessity  for  the  presence  of  these 
persons  at  the  scene  of  the  arrest,  but  that  they 
appeared  in  the  garden  with  the  crowd,  because 
of  their  great  eagerness  to  witness  the  accom- 
plishment of  their  desires.  One  is  justified  in 
becoming  impatient  of  this  method  of  interpreta- 
tion. Strauss  seems  to  be  right  in  assuming  that 
Luke  has  here  confused  two  traditions.  He 
knew,  on  the  one  hand,  of  the  expostulation  of 
Jesus  in  the  garden  against  the  manner  of  his 
arrest:  "Are  ye  come  out,  as  against  a  robber, 
with  swords  and  staves  to  seize  me?  I  was  daily 
with  you  in  the  temple  teaching,  and  ye  took  me 
not."  He  also  knew  of  the  tradition,  reported 
by  John,  that  Jesus  had  a  conversation  with  some 
high  official,  represented  by  John  as  Annas,  but 
did  not  know  when  the  conversation  took  place. 
Luke  simply  amalgamated  the  two  traditions, 


JESUS  ARRESTED  79 

and,  placing  the  conversation  in  the  garden,  was 
forced  to  assume  that  high  dignitaries  were  there 
present,  and  that  Jesus  addressed  his  expostula- 
tion to  them.  Whatever  may  have  been  the  origin 
of  this  portion  of  Luke's  narrative,  it  cannot  be 
correct. 

But  all  three  accounts  in  the  synoptic  Gospels 
must  be  regarded  faulty  in  the  statement  that  a 
"multitude"  came  to  the  garden  to  make  the 
arrest.  The  word  which  has  been  translated 
multitude  signifies  properly  a  "rabble"  and  not 
an  organized  force.  A  rabble  is  formed  of  its 
own  volition,  and  without  authorization.  Hence 
it  has  no  legal  standing,  and  its  members  who 
endeavor  to  interfere  with  the  liberty  of  any  citi- 
zen are  guilty  of  assault.  Many  modern  writers 
think  that  the  multitude  was  but  a  crowd  of 
slaves  and  attendants  upon  the  high  priest,  de- 
riving this  idea  from  the  nature  of  the  weapons 
they  carried.  Matthew  and  Mark  both  say  that 
they  carried  "swords  and  staves,"  and  the  fact 
that  some  of  them  carried  staves  has  seemed  to 
writers  sufficient  evidence  that  they  were  not 
regular  troops,  but  were  hastily  gathered  to- 
gether merely  for  this  single  purpose,  and  were 
armed  with  such  weapons  as  they  could  readily 
find.  Those  who  argue  in  this  way  have  failed 
to  notice  the  incident  related  by  Josephus,  who 
says  that  on  the  occasion  of  an  insurrection  Pilate 
ordered  his  regulars  to  quell  the  uprising  by  the 


80  THE  PROSECUTION  OF  JESUS 

use  of  their  staves.10  And  some  even  go  so  far 
as  to  maintain  that  the  leader  of  the  multitude 
was  a  servant  of  the  high  priest,  and  that  it  was 
this  leader  who  had  his  ear  cut  off  by  one  of  the 
disciples  of  Jesus.  Of  course  no  justification  for 
such  an  opinion  can  be  obtained  from  the  narra- 
tives of  the  Gospels. 

Those  who  claim  that  the  multitude  was  a 
rabble,  or  was  composed  of  a  body  of  slaves,  lose 
sight  of  two  important  considerations.  The  ob- 
ject of  the  expedition  was  the  arrest  of  one  man, 
either  alone  or  attended  by  not  more  than  eleven 
friends.  The  Sanhedrin  must  have  learned  from 
Judas  that  no  others  were  with  Jesus  during  the 
evening,  and  could  regard  it  as  extremely  un- 
likely that  others  would  have  joined  him  at  this 
late  hour  in  the  night.  Therefore  the  under- 
taking was  not  to  be  considered  a  very  difficult 
one,  especially  in  view  of  the  fact  that  during  the 
last  three  years  the  history  of  the  person  to  be 
arrested  had  not  been  such  as  to  warrant  the  ex- 
pectation that  he  would  violently  resist  arrest. 
For  this  reason  a  crowd,  or  multitude,  would  be 
quite  unnecessary,  nor  would  the  Sanhedrin  long 
debate  the  question  of  a  large  posse.  Luke,  how- 
ever, relates  a  slight  incident  which  has  been 
taken  as  evidence  that  Jesus  planned  to  resist 
a  possible,  or  probable,  arrest,  and  that  this  de- 
sign furnished  the  Sanhedrin  with  sufficient 

10  Jos.  Bell.  II,  176. 


JESUS  ARRESTED  81 

ground  for  sending  a  large  force.  At  the  con- 
clusion of  the  last  supper  Jesus  counseled  his 
disciples  to  purchase  swords,  for  he  was  soon  to 
fall  into  the  hands  of  his  enemies.11  It  seems 
very  probable  that  the  advice  was  actually  given, 
but  it  was  already  too  late  to  plan  a  forcible  re- 
sistance, inasmuch  as  the  arrest  occurred  almost 
immediately  after  the  conversation  took  place. 
Even  if  resistance  was  planned,  the  means 
adopted  for  that  resistance  was  fearfully  inade- 
quate. "And  they  said,  Lord,  behold,  here  are 
two  swords.  And  he  said  unto  them,  It  is 
enough."  Without  doubt  one  of  these  two 
swords  was  used  a  little  later  in  the  garden,  when 
one  of  the  followers  of  Jesus  unskilfully  cut  off 
the  ear  of  a  servant  of  the  high  priest,  whereas 
he  probably  intended  to  inflict  a  mortal  wound. 
But  by  this  time  Jesus  had  permanently  aban- 
doned all  notion  of  resistance,  for  he  bade  his 
disciple  to  put  up  his  sword.  If  Jesus  really 
planned  to  resist  forcibly,  he  must  have  had  that 
idea  for  only  a  very  short  time.  He  had  long 
known  that  his  life  was  in  danger,  and  that  the 
Sanhedrin  was  prepared  to  arrest  him,  and  to 
put  him  on  trial.  Nevertheless  he  came  to  Jeru- 
salem a  few  days  before  the  passover,  although 
he  quite  anticipated  that  he  would  suffer  death 
while  there.12  He  heroically  faced  the  dangers 

•»  Lk.  XXII,  35-38. 

12  Mt.  XVI,  21 ;  XX,  18-19 ;  Mk.  VIII,  31 ;  Lk.  IX,  22;  XVIII,  32. 


82  THE  PROSECUTION  OF  JESUS 

he  foresaw,  and  went  about  the  city  openly,  even 
going  frequently  to  the  temple,  where  he  would 
encounter  the  greatest  peril.  All  of  these  things 
Judas  knew, — the  expectation  of  death,  the  pos- 
session of  but  two  swords,  the  small  number  who 
were  with  Jesus,  and  the  exact  place  where  Jesus 
could  be  found.  "Now  Judas  also,  who  betrayed 
him,  knew  the  place :  for  Jesus  oft-times  resorted 
thither  with  his  disciples."13 

The  second  point  ignored  by  many  critics  is 
that  the  Sanhedrin  intended  to  capture  Jesus 
secretly.  The  presence  of  a  multitude  implies 
common  knowledge  of  what  is  about  to  take 
place,  and  publicity  is  just  what  the  Sanhedrin 
wished  to  avoid.  That  is  why  the  arrest  was 
made  at  night.  They  had  several  opportunities 
to  arrest  Jesus  during  the  preceding  week,  but 
they  deliberately  postponed  that  event  until  they 
could  find  him  somewhere  apart  from  the  crowd. 
They  feared  that  the  popularity  of  Jesus  would 
lead  to  violence  on  the  part  of  his  friends  or  ad- 
mirers, when  they  discovered  Jesus  being  appre- 
hended. For  these  reasons  the  Sanhedrin  would 
send  only  a  few  persons,  under  the  leadership  of 
Judas,  to  the  spot  where  they  could  find  Jesus. 
Nor  would  they  go  through  the  streets  so  openly 
as  to  attract  the  attention  of  the  people  moving 
about,  as  some  have  supposed.  It  has  been  said 
that  the  size  of  the  crowd  was  due  to  the  fact  that 

is  Jn.  XVIII,  2. 


JESUS  ARRESTED  83 

many  attached  themselves  to  those  who  were 
actually  commissioned  to  make  the  arrest.  Jeru- 
salem was  no  doubt  just  like  any  other  city  in 
having  people  wandering  about  its  streets  at 
midnight,  but  it  is  improbable  that  on  the  evening 
before  the  passover  there  would  be  many  on  the 
streets  at  that  hour.  Even  these  were,  in  all 
probability,  strangers  who  had  come  to  the  city 
for  the  festival,  and  the  people  in  other  parts  of 
Palestine  seem  to  have  been  more  favorably  dis- 
posed toward  Jesus  than  were  the  inhabitants  of 
Jerusalem.  This  is  evident  in  the  scene  where 
Peter  was  accused  of  being  a  follower  of  Jesus, 
because  he  had  a  Galilean  accent.  There  would 
then  be  a  double  reason  for  preventing  a  large 
crowd  from  becoming  attached  to  the  posse. 

It  must  be  maintained,  contrary  to  accepted 
belief,  that  John  gives  the  most  logical  and  rea- 
sonable account  of  the  persons  present  in  the 
garden  at  the  time  of  the  arrest.  John  says  that 
Judas  received  "the  band,  and  officers  from  the 
chief  priests  and  the  Pharisees,"  and  that  these 
made  the  arrest.14  A  little  later  he  states  that 
the  arrest  was  actually  effected  by  "the  band  and 
the  chief  captain,  and  the  officers  of  the  Jews." 
The  officers  are  mentioned  again  as  sitting  about 
the  fire  in  the  house  of  the  high  priest,  when  Peter 
denied  Christ.  The  statement  that  they  were 
officers  of  the  Jews,  the  fact  that  they  came  into 

**  Jn.  XVIII,  3. 


84  THE  PROSECUTION  OF  JESUS 

the  high  priest's  house,  and  the  further  fact  that 
they  had  once  before  been  sent  by  "the  chief 
priests  and  the  Pharisees"  to  capture  Jesus,15 
prove  that  they  were  regularly  employed  in  the 
service  of  the  Sanhedrin  in  some  capacity.  The 
most  reasonable  assumption  is  that  they  had  the 
function  of  police  officers,  and  this  conclusion  is 
borne  out  by  somewhat  frequent  references  to 
them  in  Josephus,  who  assigns  to  them  the  duties 
of  maintaining  order,  making  arrests,  and  exe- 
cuting sentences  of  the  courts.  It  is  evident  that 
they  were  a  body  quite  distinct  from  the  temple 
guard,  and  it  is  they  who  would  naturally  arrest 
Jesus  upon  direction  of  the  Sanhedrin.  The 
"multitude"  of  the  synoptic  Gospels  is  this  body, 
either  alone  or  with  others  to  assist  them.  The 
most  probable  explanation  of  the  use  of  the  word 
"multitude"  is  that  in  the  darkness  of  midnight 
the  disciples  fancied  the  party  larger  than  it  was. 
But  very  much  has  been  made  of  the  presence 
of  the  band  _(a-irelpa)  and  the  chief  captain 
(x&(apxos).  It  is  commonly  held  that  they  could 
not  have  been  Jewish  soldiers  or  Jewish  guards, 
but  that  they  were  Romans.  Consequently  it  is 
very  generally  claimed  that  the  body  which  made 
the  arrest  was  composed  partly  of  Roman  sol- 
diers and  partly  of  Jewish  attendants  upon  the 
high  priest,  or  of  the  temple  guard.  The  essen- 
tial feature  of  the  view  of  the  harmonists  is  that 

is  Jn.  VII,  32;  Mt.  XXVI,  58. 


JESUS  ARRESTED  85 

both  Romans  and  Jews  were  concerned  in  the 
arrest.  According  to  this  view,  the  "multitude" 
of  the  synoptic  Gospels  would  be  equivalent  to 
John's  "officers  of  the  Jews,"  while  John's 
"band"  was  composed  of  Roman  soldiers.  In 
John's  Gospel  those  entering  the  garden  carried 
"weapons,"  but  the  synoptic  Gospels  say 
"swords  and  staves,"  and  modern  interpreters 
analyze  them  into  swords  of  the  Romans  and 
staves  of  the  Jews. 

Scholars  are  divided  into  two  classes  in  their 
attitude  toward  this  passage  in  John.  The  ma- 
jority believe  that  the  band  was  a  cohort  of 
Roman  soldiers,  obtained  from  Pilate  by  the 
Sanhedrin  to  assist  in  making  the  arrest.  Others, 
holding  that  this  would  be  an  impossibility, 
simply  reject  this  portion  of  the  narrative  of 
John  in  its  entirety,  on  the  ground  of  historicity. 
But  this  does  not  mean  that  these  scholars  believe 
the  passage  is  not  to  be  attributed  to  the  writer 
of  the  Gospel.  Thus  Brandt  apparently  thinks 
that  John  included  both  Romans  and  Jews  in 
the  arresting  party  in  order  to  show  the  great- 
ness of  Christ,  for  a  body  so  large  could  readily 
have  effected  the  arrest  of  an  ordinary  man  even 
in  broad  daylight. 

Those  who  reject  the  passage  on  the  ground 
of  its  inaccuracy  are  right  in  their  claim  that  a 
Roman  force  could  not  have  been  employed  to 
make  the  arrest.  For  how  could  the  Jewish 


86  THE  PROSECUTION  OF  JESUS 

authorities  obtain  a  detachment  of  Roman  sol- 
diers? If  they  went  directly  to  Pilate  and  said 
that  they  wished  him  to  supply  them  with  a  force 
sufficient  to  capture  one  who  had  broken  the  law, 
he  would  unquestionably  ask  who  the  person  was 
whom  they  wanted  to  arrest,  and  what  law  he 
had  broken.  Their  answer  must  be  that  Jesus 
was  a  dangerous  criminal,  whom  they  planned  to 
apprehend  at  once.  Pilate,  in  that  case,  would 
immediately  inform  them  that,  if  there  was  a 
dangerous  criminal  abroad,  the  Romans  would 
take  him  in  charge  at  once.  That  would  be  the 
end  of  all  connection  of  the  Sanhedrin  with  the 
case.  But  if  they  said  that  Jesus  was  a  blas- 
phemer, or  an  offender  against  any  ecclesiastical 
law,  Pilate's  proper  and  natural  answer  would 
be  that  he  had  no  interest  in  such  a  charge,  and 
that  they  might  take  care  of  it  themselves.  A 
Roman  governor  could  have  no  concern  in  the 
breaking  of  an  ecclesiastical  law  in  a  small  and 
insignificant  nation  like  the  Jews.  An  excellent 
illustration  of  this  is  seen  in  the  attitude  of  Gallio, 
the  governor  of  Achaia,  when  Paul  was  brought 
before  him  by  certain  Jews:  "If  indeed  it  were 
a  matter  of  wrong  or  of  wicked  villany,  O  ye 
Jews,  reason  would  that  I  should  bear  with  you ; 
but  if  they  are  questions  about  words  and  names 
and  your  own  law,  look  to  it  yourselves;  I  am 
not  minded  to  be  a  judge  of  these  matters."16 

**Acti,  XVIII,  14-15. 


JESUS  ARRESTED  87 

It  is  inconceivable  that  the  Sanhedrin  could  get 
any  help  from  the  governor,  if  they  wished  to 
arrest  and  prosecute  a  person  for  an  infraction 
of  Jewish  law.  The  statement  of  Dupin,  that 
there  were  some  Roman  soldiers  in  the  group 
that  made  the  arrest,  but  that  they  were  present 
merely  out  of  curiosity,  is  too  absurd  to  require 
refutation.  Even  if  Pilate  had  granted  a  request 
for  troops,  it  could  never  have  occurred  to  him 
that  it  would  be  proper  to  surrender  the  prisoner 
to  the  Jews  for  several  hours  while  the  Jewish 
officials  deliberated  upon  his  fate.  Jesus  was 
not  lodged  in  the  Roman  barracks  after  his  ar- 
rest, which  must  certainly  have  happened  if  he 
had  been  arrested  by  Roman  soldiers.  The  con- 
clusion which  is  absolutely  necessary  is  that  the 
"band"  and  the  "captain"  of  John's  narrative 
were  something  other  than  Roman,  or  that  John's 
account  of  the  persons  present  is  altogether  in- 
correct, and  must  be  cast  aside. 

It  is  also  to  be  noted  that  John  does  not  say 
that  "a"  cohort  appeared  in  the  garden,  but  "the" 
cohort  did  so.  It  has  been  held  by  the  majority 
of  modern  scholars,  following  the  lead  of 
Schuerer,  that  the  passage  in  John  and  one  in  the 
Acts  give  sufficient  ground  for  the  belief  that 
there  was  only  one  cohort  of  Roman  soldiers  sta- 
tioned in  Jerusalem.  The  word  "band"  occurs 
only  once  elsewhere  in  the  Gospels.  Matthew 
uses  it  of  the  soldiers  in  attendance  upon  the 


88  THE  PROSECUTION  OF  JESUS 

governor:  "Then  the  soldiers  of  the  governor 
took  Jesus  into  the  praetorium,  and  gathered 
unto  him  the  whole  band."17  The  word  seems 
here  to  mean  a  cohort,  but  it  obviously  refers  to 
the  cohort  which  on  that  particular  morning 
acted  as  a  bodyguard  to  the  governor,  while  he 
was  performing  one  of  the  duties  of  his  office. 
It  was  undoubtedly  one  of  the  cohorts  which 
came  with  the  governor  from  Caesarea  when  he 
was  about  to  pay  an  official  visit  to  Jerusalem. 
The  same  word  is  found  also  three  times  in  the 
Acts.  In  two  of  them  it  is  used  in  the  technical 
sense  of  a  cohort,  for  the  names  of  the  cohorts 
are  mentioned.18  In  the  third  occurrence  there 
is  an  expression  very  similar  to  that  in  the  Gospel 
of  John,  for  the  writer  speaks  of  the  "band"  of 
Roman  soldiers  in  Jerusalem.19  It  is  most  note- 
worthy that  Luke,  when  he  wrote  the  Acts,  knew 
so  accurately  the  nature  of  the  military  protec- 
tion of  Judea  that  he  was  even  acquainted  with 
the  names  of  the  cohorts  of  Roman  soldiers,  and 
yet  makes  no  mention  whatever  of  the  presence 
of  Roman  soldiers  at  the  arrest  of  Jesus.  It 
proves  conclusively  that  in  the  opinion  of  Luke 
no  Roman  soldiers  had  any  connection  with  the 
arrest. 

The   extremely   large   escort   given   to   Paul 

IT  Mt.  XXVII,  27. 
is  Acts,  X,  1;  XXVII,  1. 
s,  XXI,  31. 


JESUS  ARRESTED  89 

when  he  was  being  conducted  from  Jerusalem 
to  Caesarea  is  evidence  that  the  number  of  sol- 
diers in  the  city  was  much  greater  than  a  single 
cohort.20  And  apart  from  the  New  Testament 
there  is  evidence  that  there  were  more  than  one 
cohort  stationed  in  Jerusalem.  Thus,  Josephus 
says:  "There  was  always  a  Roman  legion  in  the 
Antonia."21  The  difficulty  here  is  that  the  word 
"always"  is  lacking  in  the  best  manuscript,  and 
for  this  reason  Niese  thinks  it  spurious.  If  it  is 
genuine,  the  evidence  is  ample  that  a  large  force 
was  always  to  be  found  in  Jerusalem,  and  that 
John  could  not  properly  say  "the  cohort"  to 
denote  a  detachment  of  Roman  soldiers,  but 
would  be  obliged  to  say  "a  cohort."  The  number 
of  auxiliary  cohorts  in  the  lists  made  by  Chees- 
man  and  Cichorius  shows  that  there  were  at  least 
five  or  six  cohorts  in  Judea  in  addition  to  those 
at  Caesarea,  and  the  majority  of  these  were  un- 
doubtedly stationed  in  Jerusalem. 

But  a  sufficient  argument  against  the  interpre- 
tation of  the  word  "band"  (a-irelpa)  in  the  tech- 
nical sense  of  a  "cohort"  is  the  common  use  of 
the  word  to  denote  a  body  of  soldiers  of  any 
number  whatever,  either  small  or  great.  Even 
a  careful  writer  like  Polybius  uses  it  of  a  third 
of  a  cohort,  as  well  as  of  a  whole  cohort.22  And 

20 Acts,  XXIII,  23. 

21  Bell.  V,  244. 

22Folyb.  II,  3.  2;  VI,  24.  5;  XI,  23. 


90  THE  PROSECUTION  OF  JESUS 

the  three  lexicographers,  Zonaras,  Suidas  and 
Hesychius,  all  state  that  the  word  o-irelpa  is  used 
of  a  body,  or  group,  of  soldiers,  but  do  not  insist 
upon  any  particular  number  in  the  group.  In 
the  apocryphal  books  of  the  Old  Testament  there 
are  two  passages  in  which  the  same  word  indi- 
cates a  company  or  detachment  of  soldiers  of  any 
number.23  Since  these  books  were  almost  con- 
temporaneous with  New  Testament  times  it 
would  not  be  surprising  to  find  a  similar  loose 
usage  in  John.  In  fact  the  indefinite  usage  is 
so  common  that  the  burden  of  proof  lies  with 
those  who  claim  that  John  is  using  the  word  in 
its  strictly  technical  sense. 

The  manifest  improbability  that  the  Roman 
authorities  had  any  connection  with  the  arrest 
compels  one  to  seek  for  some  other  application 
of  the  word  "band,"  and  to  make  it  refer  to  an- 
other organized  body  in  Jerusalem.  The  only 
possibility  of  doing  this  is  by  ascertaining 
whether  it  can  mean  the  temple  guard.  With 
this  in  view  one  would  translate  the  passage  in 
John's  Gospel:  "The  temple  guard,  together 
with  their  captain  and  the  police  officers  at- 
tendant upon  the  Sanhedrin."  The  usual  inter- 
pretation of  the  situation  in  the  garden  is  that 
a  rabble,  hastily  gathered  together  and  acting 
under  the  instigation  of  the  chief  priests,  ap- 
peared suddenly  without  a  warrant  and  illegally 

232  Mace.  VIII,  23;  Jud.  XIV,  11. 


JESUS  ARRESTED  91 

effected  the  capture  of  Jesus.  Others  hold  that 
the  Jewish  body  was  composed  of  a  part  of  the 
temple  guard,  and  that  they  were  assisted  by  a 
cohort,  or  a  part  of  one,  of  Roman  soldiers.  No 
portion  of  either  of  these  theories  can  be  correct. 
The  Roman  detachment  must  be  absolutely  ex- 
cluded. And  the  temple  guard  cannot  have 
formed  the  main  part  of  the  force,  if,  indeed,  they 
were  present  at  all. 

The  arrest  was  actually  consummated  by  the 
persons  legally  qualified  to  make  arrests,  "the 
officers  of  the  Jews,"  (vTr^peraC),  who  constituted 
the  regular  police  force,  under  direction  of  the 
Sanhedrin,  and  apparently  also  subject  to  the 
orders  of  the  "captain  of  the  temple."24  The 
prevalent  idea  that  they  were  an  irresponsible 
rabble  arises  partly  from  the  unfortunate  choice 
of  the  word  "multitude"  in  the  synoptic  Gospels, 
and  partly  from  the  inaccurate  translation 
"servants"  occurring  in  three  different  places  in 
the  authorized  version.25  The  confusion  is  in- 
creased by  the  fact  that  the  high  priest's  slave 
(SouXog),  whose  ear  was  cut  off,  is  denoted  by 
this  same  word  "servant"  in  the  authorized 
version.  The  revised  versions  keep  the  two 
words  distinct,  retaining  the  translation  "ser- 
vant" for  the  one  whose  ear  was  cut  off,  but 
using  the  word  "officers"  for  those  who  oc- 

24  Acts,  V,  22;  26. 

25  Mt.  XXVI,  58;  Mk.  XIV,  64;  65. 


92  THE  PROSECUTION  OF  JESUS 

cupied  the  position  of  "policemen."  It  has 
already  been  shown  that  in  the  Gospels,  in  the 
Acts,  and  in  Josephus,  the  "officers"  were  regu- 
larly employed  in  the  capacity  of  policemen. 
The  fourth  Gospel  is  the  only  one  which  actually 
states  that  these  persons  arrested  Jesus,  but  this 
narrative  is  confirmed  by  the  fact  that  Matthew 
and  Mark  represent  them  as  sitting  about  the 
fire  in  the  court  of  the  high  priest's  house  after 
the  arrest  had  been  accomplished.26 

The  only  real  question  that  can  arise  in  con- 
nection with  the  composition  of  the  body  that 
made  the  arrest  is  that  of  the  presence  of  the 
temple  guard.  Luke  is  of  value  here,  for  he  says 
that  "captains  of  the  temple"  were  in  the  garden, 
and  were  addressed  by  Jesus.  The  temple  guard 
was  composed  of  Levites,  and  their  chief  func- 
tion was  that  of  maintaining  order  in  the  temple 
precincts,  and  of  preventing  the  unclean  from 
entering.  They  were  under  command  of  officers 
who  are  given  the  bombastic  title  of  "generals" 
(o-Tparrjyoi]  in  the  New  Testament  and  in  Jo- 
sephus. There  is  evidence  that  the  temple  guard 
made  arrests  within  the  temple  precincts,  but  our 
sources  give  no  example  of  their  being  called 
upon  to  do  so  beyond  these  limits,  unless  the 
arrest  of  Jesus  be  a  case  in  point.  It  was  the 
captain  of  the  temple  guard  who  arrested  Peter 
and  John  when  they  preached  in  the  temple.27 

26  Mt.  XXVI,  58;  Mk.  XIV,  54. 
i,  IV,  1-3. 


JESUS  ARRESTED  93 

A  short  time  later  the  same  episode  was  repeated, 
and  the  captain  quietly  arrested  apostles  in  the 
temple.28  But  the  temple  guard  was  sometimes 
called  upon  for  other  service  in  addition  to  that 
of  maintaining  order  in  the  temple  precincts. 
During  the  reign  of  Claudius  a  quarrel  arose 
between  the  Samaritans  and  the  Galileans,  and 
the  Galileans  were  aided  by  their  kinsmen  of 
Judea.  In  the  fighting  which  ensued  many  were 
killed.  An  appeal  was  finally  made  to  Quad- 
ratus,  governor  of  Syria,  who  had  been  deputed 
by  Claudius  to  settle  the  quarrel.  Quadratus 
arrested  the  high  priest  and  the  captain  of  the 
temple  guard,  and  sent  them  to  Rome  to  be  tried 
by  the  emperor.29  This  could  not  have  happened 
unless  the  guard  had  been  active  in  the  field,  and 
a  long  distance  from  Jerusalem.  A  second  in- 
stance occurred  in  the  midst  of  the  Jewish  War, 
when  an  army  of  Idumaeans  attacked  the  city, 
aided  by  dissensions  among  the  various  factions 
within  the  walls.  On  that  occasion  the  city  was 
guarded  by  the  temple  guard  (<t>povpd)  under 
command  of  their  "captains"  (crrpar-^yoi). 
Apparently  these  were  on  duty  in  different  parts 
of  the  city,  and  were  acting  as  sentries  on  the 
walls.30 

The  third  example  is  found  in  the  Gospel  of 


s,  V,  26. 

29  Jos.  Ant.  XX,  132;  Bell.  II,  243. 
so  Jos.  Bell.  V,  270  ff. 


94  THE  PROSECUTION  OF  JESUS 

Matthew,  where  the  scene  in  the  governor's 
palace  on  the  day  following  the  crucifixion  is 
described.  "Now  on  the  morrow,  which  is  the 
day  after  the  Preparation,  the  chief  priests  and 
the  Pharisees  were  gathered  together  unto 
Pilate,  saying,  Sir,  we  remember  that  that  de- 
ceiver said  while  he  was  yet  alive,  After  three 
days  I  rise  again.  Command  therefore  that  the 
sepulchre  be  made  sure  until  the  third  day,  lest 
haply  his  disciples  come  and  steal  him  away,  and 
say  unto  the  people,  He  is  risen  from  the  dead: 
and  the  last  error  will  be  worse  than  the  first. 
Pilate  said  unto  them,  Ye  have  a  guard:  go, 
make  it  as  sure  as  ye  can.  So  they  went,  and 
made  the  sepulchre  sure,  sealing  the  stone,  the 
guard  being  with  them."31  When  Pilate  said, 
"Ye  have  a  guard,"  he  was  certainly  thinking  of 
the  temple  guard,  and  his  words  indicate  that 
they  could  readily  be  employed  beyond  the  tem- 
ple precincts.  But  in  literature  and  in  art  the 
guard  at  the  tomb  is  commonly  represented  as 
a  small  group  of  Roman  soldiers.  This  under- 
standing of  the  passage  of  Matthew  is  based 
upon  the  idea  that  the  word  used  by  Matthew 
(e^  ere),  and  translated  "Ye  have,"  is  not  the 
indicative,  but  is  the  imperative,  and  means 
"Take  a  guard."  Thus  Pilate  seems  to  accede 
to  the  request  of  the  chief  priests  that  a  Roman 
guard  be  granted  them.  But  for  many  reasons 

si  Mt.  XXVII,  62-66. 


JESUS  ARRESTED  95 

this  is  impossible.  In  the  first  place,  the  verb 
of  the  passage  (ej(a>)  cannot  have  the  meaning 
"take."  Secondly,  if  Pilate  had  yielded  to  the 
request  of  the  chief  priests,  he  would  never  say 
"take,"  but  would  use  some  such  expression  as 
"I  shall  give  you."  Thirdly,  it  is  quite  beyond 
reason  that  he  should  have  granted  a  guard  at 
all.  With  the  sympathy  which  he  evidently  had 
for  Jesus  during  the  trial,  he  would  have  only 
a  feeling  of  irritation  at  a  further  request  from 
the  prosecutors  of  Jesus.  Even  without  this 
feeling  his  superior  Roman  attitude  would  make 
him  callous  to  any  appeal  from  the  despised 
subject  nation.  Fourthly,  when  the  resurrection 
actually  occurred,  the  watch  did  not  make  a  re- 
port to  the  officers  of  the  Roman  forces,  but  to 
the  chief  priests.  Fifthly,  the  bribe  given  the 
watch  by  the  chief  priests  could  not  possibly 
have  been  given  to  Roman  soldiers.  Had  Roman 
soldiers  confessed  that  they  slept  while  on  guard, 
they  would  have  been  punished  most  ruthlessly. 
The  conclusion  is  inevitable  that  the  watch  at 
the  tomb  was  composed  of  a  small  detachment 
of  the  temple  guard. 

It  must,  therefore,  be  regarded  as  established 
that  the  arrest  of  Jesus  was  effected  by  the  ordi- 
nary "police  officers"  (vTn/percu),  and  if  a  "band" 
(a-Tretpa)  with  their  "captain"  (a-TpaTyyos)  ac- 
companied the  police  officers,  it  was  composed 
of  a  portion  of  the  temple  guard.  John  uses  his 


96  THE  PROSECUTION  OF  JESUS 

terms  somewhat  loosely,  to  be  sure,  but  not  more 
so  than  do  many  of  his  contemporaries.  One 
slight  difficulty  still  remains,  namely,  the  desig- 
nation of  the  captain  in  the  Gospel  of  John.  The 
captain  is  there  called  by  the  title  (x&iapx0*} 
which  ordinarily  translates  the  Latin  title  "mili- 
tary tribune,"  the  commander  of  a  double  or  of 
a  single  cohort.  The  word  properly  means  the 
"commander  of  a  thousand  men."  But  here 
again  an  indefiniteness  prevails  among  Greek 
writers,  for  the  same  word  is  used  to  describe 
any  commander,  even  by  writers  of  the  best 
classical  Greek  literature,  such  as  Aeschylus  and 
Xenophon. 

Those  who  claim  that  the  arrest  was  illegal 
because  it  was  effected  by  a  disorderly  rabble 
lose  the  whole  basis  for  their  argument  when  it 
is  proved  that  Jesus  was  arrested  by  those  who 
were  legally  qualified  to  make  an  arrest.  Nor 
can  it  be  successfully  maintained  that  the  posse 
was  acting  on  its  own  responsibility,  for  one 
must  not  forget  that  the  Sanhedrin  had  already 
held  three  meetings  to  devise  plans  for  accom- 
plishing this  very  thing.  It  is  necessary,  there- 
fore, to  assume  that  all  the  appropriate  legal 
machinery  for  effecting  the  apprehension  of 
Jesus  was  called  into  operation.  If  it  was  neces- 
sary to  have  a  written  warrant  for  the  arrest, 
such  as  Saul  had  later,32  it  is  necessary  also  to 
believe  that  the  police  officers  had  one. 

**Acti,  IX,  2. 


JESUS  ARRESTED  97 

Many  claim  that  the  arrest  was  illegal  because 
it  took  place  at  night,  and  the  Talmud  says: 
"Let  it  be  tried  during  the  day  and  suspended 
at  night."33  But  that  sentence  occurs  in  the  midst 
of  the  description  of  the  procedure  connected 
with  the  actual  conduct  of  a  criminal  suit,  and 
has  no  reference  whatsoever  to  the  making  of  an 
arrest.  There  is  nothing,  apparently,  in  the 
Talmud  to  suggest  that  a  criminal  could  not  be 
arrested  wherever  and  whenever  he  was  found. 
It  is  most  unreasonable  to  construe  that  injunc- 
tion of  the  Talmud  into  a  prohibition  against 
capturing  a  criminal  at  any  time.  No  system 
of  jurisprudence,  and  no  system  of  procedure, 
could  continue  to  exist  on  such  a  basis. 

It  is  also  said  that  the  use  of  weapons  was 
illegal  unless  active  resistance  to  arrest  was  of- 
fered. This  statement  is  in  accord  with  the  spirit 
of  the  Talmud,  and  the  fear  of  resistance  was 
the  reason  for  carrying  weapons  in  this  case. 
And  resistance  was  actually  offered  by  Peter. 
It  is  true  that  resistance  was  improbable  from 
Jesus  himself,  but  police  officers  are  never  justi- 
fied in  taking  such  chances,  and  the  action  of 
Peter  proves  their  wisdom  on  that  occasion.  A 
curious  argument  is  sometimes  advanced,  that, 
since  it  was  contrary  to  law  to  carry  arms  during 
a  national  festival,  the  posse  acted  illegally  in 
bringing  weapons  with  them.  In  that  case  the 

ss  Mishna,  Sank.  4.  1. 


98  THE  PROSECUTION  OF  JESUS 

followers  of  Jesus  were  also  acting  illegally,  for 
they  had  swords.  And  it  was  less  pardonable 
in  their  case,  because  the  disciples  were  merely 
private  citizens,  while  the  arresting  party  was 
composed  of  officers  of  the  law.  But  the  real 
situation  is  that  the  time  of  the  festival  of  the 
passover  had  not  yet  arrived.  The  passover 
supper,  according  to  the  argument  of  the  pre- 
ceding chapter,  was  to  be  held  twenty-four  hours 
later. 

"Now  he  that  betrayed  him  had  given  them 
a  token,  saying,  Whomsoever  I  shall  kiss,  that 
is  he;  take  him,  and  lead  him  away  safely.  And 
when  he  was  come,  straightway  he  came  to 
him,  and  saith,  Rabbi;  and  kissed  him  much 
(Kar^CXfja-ev}  ,"34  For  this  act  of  treachery  Judas 
will  forever  be  regarded  as  the  most  despicable 
of  traitors.  Nor  does  one  feel  kindly  disposed 
toward  the  employer  of  a  traitor.  But  it  is  one 
of  the  recognized  methods  of  gaining  informa- 
tion in  all  penal  systems.  Hebrew  jurisprudence 
looked  with  scorn  upon  the  traitor,  and  would 
not  permit  such  a  person  to  give  evidence  in  a 
court  of  law.  But  there  seems  to  be  no  proof 
derivable  from  the  Talmud  that  the  employment 
of  the  spy  or  the  traitor  in  discovering  an  alleged 
criminal,  or  in  securing  information  about  him, 
was  forbidden  by  law.  Such  things  occur  in  the 
United  States  and  in  all  other  civilized  countries, 

3*  Mk.  XIV,  44-45;  cp.  Mt.  XXVI,  48-49;  Lk.  XXII,  47-48. 


JESUS  ARRESTED  99 

and  the  objection  of  critics  is  merely  the  senti- 
mental one,  that  they  would  wish  to  find  justifi- 
cation for  declaring  any  intercourse  with  a  traitor 
illegal.  But  that  cannot  be  done,  until  the  law 
so  declares  it,  and  apparently  the  Hebrew  law 
did  not  do  so. 

"And  a  certain  one  of  them  smote  the  servant 
of  the  high  priest,  and  struck  off  his  right  ear. 
But  Jesus  answered  and  said,  Suffer  ye  them 
thus  far.  And  he  touched  his  ear,  and  healed 
him."35  The  question  chiefly  discussed  in  this 
passage  is  the  reason  for  the  failure  of  the  posse 
to  arrest  Peter  for  resisting  the  action  of  the 
representatives  of  the  Sanhedrin.  It  is  commonly 
argued  that  they  were  only  a  rabble,  and  knew 
that  they  were  acting  illegally,  and  for  this 
reason  they  would  not  dare  to  extend  their 
illegality  by  making  a  second  arrest.  Peter,  it 
is  claimed,  was  not  resisting  an  arrest  legally 
made.  If  he  had  done  so,  he  would  have  been 
seized  at  once.  This  is  inquiring  into  the  motives 
of  human  conduct,  Which  is  always  a  precarious 
thing.  But  if  one  adopts  this  line  of  argument, 
it  may  readily  be  claimed  that  if  they  were  acting 
illegally  they  could  easily  better  their  position  in 
the  eyes  of  the  people  by  capturing  one  who  was 
obviously  violent,  and  was  guilty  of  assault.  A 
conscience-stricken  beginning  seeks  to  justify 

35  Lk.  XXII,  50-51;  cp.  Mt.  XAVI,  51-52;  Mk.  XIV,  47;  Jn. 
XVIII,  10-11. 


100         THE  PROSECUTION  OF  JESUS 

itself  by  extreme  measures.  But  if  they  were 
acting  legally  they  could  well  afford  to  let  Peter 
escape,  now  that  they  had  possession  of  his  leader. 
The  fact  is  that  no  argument  at  all  can  be  based 
upon  the  failure  to  arrest  Peter  for  offering  re- 
sistance to  the  officers  of  the  law. 

"And  Jesus  answered  and  said  unto  them,  Are 
ye  come  out,  as  against  a  robber,  with  swords  and 
staves  to  seize  me?  I  was  daily  with  you  in  the 
temple  teaching,  and  ye  took  me  not."36  It  is 
frequently  maintained  that  this  is  the  protest  of 
a  Jewish  citizen  against  an  unlawful  apprehen- 
sion. Instead  of  that,  it  is  a  protest  against  the 
method  adopted  in  making  the  arrest.  It  is  as 
if  he  had  said:  "I  am  not  a  dangerous  person.  I 
have  no  intention  of  resisting.  Then  why  was  it 
necessary  for  you  to  equip  yourselves  with  the 
weapons  you  ordinarily  take  with  you  when  you 
set  out  to  capture  a  robber,  or  other  dangerous 
criminal?  By  appearing  unarmed  and  unpro- 
tected in  the  temple  each  day  I  proved  to  you 
that  I  did  not  intend  to  prevent  you  in  the  exer- 
cise of  your  duty."  The  very  phraseology  of 
Jesus  goes  far  to  prove  that  the  persons  now 
making  this  arrest  were  the  persons  who  were 
usually  called  upon  to  perform  such  a  task.  This 
interpretation  of  the  words  of  Jesus  is  made  cer- 
tain by  the  phrase  added  by  Luke:  "but  this  is 
your  hour,  and  the  power  of  darkness."  It  was 

se  Mk.  XIV,  48-49;  Mt.  XXVI,  55;  Lk.  XXII,  52-53. 


JESUS  ARRESTED  101 

the  hour  of  darkness  for  the  world  when  its 
greatest  teacher  was  to  be  prevented  from  further 
teaching.  But  he  could  readily  have  overcome 
his  enemies,  according  to  the  statement  of 
Matthew:  "Or  thinkest  thou  that  I  cannot  be- 
seech my  Father,  and  he  shall  even  now  send  me 
more  than  twelve  legions  of  angels?"  So  there 
was  in  the  mind  of  Jesus  no  question  of  the 
legality  of  the  arrest;  the  method,  whereby  he 
was  placed  on  a  par  with  a  robber,  called  forth 
his  expostulation. 

The  conclusions  that  must  be  drawn  from  the 
whole  episode  are  that  the  Sanhedrin  duly  com- 
missioned their  police  officers  to  apprehend 
Jesus;  that  possibly  they  sent  some  members  of 
the  temple  guard  to  assist  the  officers,  in  case 
resistance  should  be  offered;  that  no  objection 
to  the  legality  of  the  arrest  can  be  argued  from 
the  use  made  of  the  traitor,  or  on  the  ground  of 
the  time  at  which  the  arrest  occurred,  or  because 
of  the  fact  that  weapons  were  brought.  That 
Peter  was  allowed  to  go  unpunished  for  his  as- 
sault is  a  mere  chance  occurrence,  from  which 
no  deductions  can  be  made;  and  the  expostula- 
tion of  Jesus  had  reference  only  to  the  numbers 
who  came  against  him,  and  to  the  extent  to  which 
they  had  armed  themselves,  so  that  it  seemed  as 
if  they  regarded  him  as  a  dangerous  criminal. 
It  had  no  reference  whatever  to  the  legality  or 
illegality  of  the  apprehension  itself. 


CHAPTER  V 

THE  PROCEEDINGS  BEFORE  THE  SANHEDRIN 

As  soon  as  Jesus  was  arrested,  he  was  taken 
into  the  city,  where  proceedings  were  imme- 
diately instituted  against  him  by  the  Jewish 
authorities.  The  story  of  the  course  of  events 
connected  with  these  proceedings  to  the  time  at 
which  Jesus  was  delivered  over  to  the  court  of 
Pilate  is  usually  written  by  making  a  combina- 
tion of  the  narratives  of  the  four  Gospels.  This 
method  of  handling  the  episode  is  based  upon 
the  belief  that  each  of  the  Gospels  may  be  used  to 
supplement  the  other  three.  By  the  adoption  of 
this  system  the  following  combined  account  is 
assumed  to  be  the  whole  history  of  the  six  or 
seven  hours  which  elapsed  between  the  arrest  and 
the  hearing  of  the  case  by  Pilate. 

So  the  band  and  the  chief  captain,  and  the  officers 
of  the  Jews,  seized  Jesus  and  bound  him,  and  led  him 
to  Annas  first;  for  he  was  father-in-law  to  Caiaphas, 
who  was  high  priest  that  year.  Now  Caiaphas  was  he 
that  gave  counsel  to  the  Jews,  that  it  was  expedient 
that  one  man  should  die  for  the  people.1  Annas,  there- 
iJn.  XVIII,  12-14. 

109 


PROCEEDINGS  BEFORE  SANHEDRIN   103 

fore,  sent  him  bound  unto  Caiaphas  the  high  priest.2 
The  high  priest  therefore  asked  Jesus  of  his  disciples, 
and  of  his  teaching.  Jesus  answered  him,  I  have  spoken 
openly  to  the  world;  I  ever  taught  in  synagogues,  and 
in  the  temple,  where  all  the  Jews  come  together;  and 
in  secret  spake  I  nothing.  Why  asketh  thou  me?  ask 
them  that  have  heard  me,  what  I  spake  unto  them: 
behold,  these  know  the  things  which  I  said.  And  when 
he  had  said  this,  one  of  the  officers  standing  by  struck 
Jesus  with  hisshand,  saying,  Answerest  thou  the  high 
priest  so?  Jesus  answered  him,  If  I  have  spoken  evil, 
bear  witness  of  the  evil:  but  if  well,  why  smitest  thou 
me?3  And  they  that  had  taken  Jesus  led  him  away  to 
the  house  of  Caiaphas  the  high  priest,  where  the  scribes 
and  the  elders  were  gathered  together4  (Mk.  says:  and 
there  came  together  with  him  all  the  chief  priests  and 
the  elders  and  the  scribes.5). 

Now  the  chief  priests  and  the  whole  council  sought 
witness  against  Jesus  to  put  him  to  death  (Mt.  says: 
false  witness6)  ;  and  found  it  not.  For  many  bare  false 
witness  against  him,  and  their  witness  agreed  not  to- 
gether. And  there  stood  up  certain,  and  bare  false 
witness  against  him,  saying  (Mt.  does  not  call  this 
false),  We  heard  him  say,  I  will  destroy  this  temple 
(Mt.  says:  I  am  able  to  destroy  the  temple  of  God7) 
that  is  made  with  hands,  and  in  three  days  I  will  build 
another  made  without  hands  (Mt.  omits  "that  is  made 

2  Jn.  XVIII,  24. 
sjn.  XVIII,  19-23. 
*  Mt.  XXVI,  57. 
5  Mk.  XIV,  53. 
e  Mt.  XXVI,  59. 
7  Mt.  XXVI,  61. 


104          THE  PROSECUTION  OF  JESUS 

with  hands"  and  "made  without  hands"8).  And  not 
even  so  did  their  witness  agree  together  (omitted  in 
Mt.).  And  the  high  priest  stood  up  in  the  midst,  and 
asked  Jesus,  saying,  Answerest  thou  nothing?  what  is 
it  which  these  witness  against  thee?  But  he  held  his 
peace,  and  answered  nothing.  Again  the  high  priest 
asked  him,  and  saith  unto  him,  Art  thou  the  Christ,  the 
Son  of  the  Blessed?  (Mt.  says:  I  adjure  thee  by  the 
living  God,  that  thou  tell  us  whether  thou  art  the 
Christ,  the  Son  of  God9).  And  Jesus  said,  I  am:  and 
ye  shall  see  the  Son  of  man  sitting  at  the  right  hand  of 
Power,  and  coming  with  the  clouds  of  heaven.  And  the 
high  priest  rent  his  clothes,  and  saith,  What  further 
need  have  we  of  witnesses?  Ye  have  heard  the  blas- 
phemy: What  think  ye?  And  they  all  condemned  him 
to  be  worthy  of  death.10 

And  some  began  to  spit  on  him,  and  to  cover  his  face, 
and  to  buffet  him,  and  to  say  unto  him,  Prophesy:  and 
the  officers  received  him  with  blows  of  their  hands.11 
(Lk.  says:  And  the  men  that  held  Jesus  mocked  him, 
and  beat  him.  And  they  blindfolded  him,  and  asked 
him,  saying,  Prophesy:  who  is  he  that  struck  thee? 
And  many  other  things  spake  they  against  him,  re- 
viling him.12) 

And  as  soon  as  it  was  day,  the  assembly  of  the  elders 
of  the  people  was  gathered  together,  both  chief  priests 
and  scribes ;  and  they  led  him  away  into  their  council, 
saying,  If  thou  art  the  Christ,  tell  us.  But  he  said  unto 

s  Mt  XXVI,  61. 

»  Mt.  XXVI,  63. 

»  Mk.  XIV,  55-64. 

"  Mk.  XIV,  65. 

i*  Lk.  XXII,  63-65. 


PROCEEDINGS  BEFORE  SANHEDRIN    105 

them,  If  I  tell  you,  ye  will  not  believe :  and  if  I  ask  you, 
ye  will  not  answer.  But  from  henceforth  shall  the  Son 
of  man  be  seated  at  the  right  hand  of  the  power  of  God. 
And  they  all  said,  Art  thou  then  the  Son  of  God?  And 
he  said  unto  them,  Ye  say  that  I  am.  And  they  said, 
What  further  need  have  we  of  witness?  for  we  our- 
selves have  heard  from  his  own  mouth.13 

And  the  whole  company  of  them  rose  up,  and  brought 
him  before  Pilate.14 

In  the  effort  to  secure  an  understanding  of  the 
exact  course  of  events  in  these  proceedings,  we 
are  confronted  with  the  greatest  difficulties.  The 
Gospel  narratives  are  somewhat  confused,  and 
superficially  at  least  are  inconsistent.  In  this 
situation  several  methods  are  open.  The  method 
most  frequently  pursued  is  that  of  putting  to- 
gether the  four  accounts  in  the  Gospels,  and  of 
regarding  all  the  incidents  related  in  all  four  as 
historically  accurate.  Or,  the  earliest  of  the  nar- 
ratives, that  of  Mark,  may  be  selected  and  made 
the  basis,  and  everything  that  does  not  appear 
there  be  examined  carefully  before  it  is  accepted 
as  reliable.  Or,  that  account  which  appears  most 
reasonable  may  be  chosen,  and  may  be  adopted 
as  the  genuine,  or  sole,  authority.  Or  finally, 
one  may  choose  the  eclectic  method  of  piecing 
together,  and  of  rejecting  what  does  not  seem  to 
harmonize  with  the  progress  of  the  episode  as  it 
is  conceived.  Each  of  these  is  open  to  objection, 

is  Lk.  XXII,  66-71. 
i*  Lk.  XXIII,  1. 


106         THE  PROSECUTION  OF  JESUS 

but  probably  the  first  is  least  objectionable,  since 
it  does  not  permit  one  to  be  swayed  by  his  per- 
sonal, and  prior,  convictions.  Certainly  this  is 
the  best  method  of  making  the  first  approach  to 
a  subject  of  this  kind. 

Those  who  claim  that  the  procedure  in  this 
series  of  events  constituted  a  formal  trial  before 
the  Sanhedrin,  the  most  august  court  of  the 
Jewish  nation,  have  labored  with  great  acumen 
to  discover  whether  that  procedure  could  be  made 
to  harmonize  with  the  requirements  of  the  He- 
brew criminal  law.  Almost  all  Christian  writers 
maintain  that  Jesus  was  actually  tried  in  a  crim- 
inal process  by  the  Sanhedrin,  but  that  each  step 
taken  in  the  proceedings  was  illegal,  and  that  the 
whole  trial  was  but  a  travesty  upon  the  conduct 
of  a  normal  criminal  case.  One  Hindu  writer, 
Aiyar,  upon  the  evidence  supplied  by  the  Gos- 
pels, has  decided  that  the  trial  was  a  legal  one, 
and  that  the  conviction  of  Jesus  on  a  charge  of 
blasphemy  was  both  legal  and  just.  Jewish 
writers  are  divided  on  the  subject.  The  earliest 
of  these,  Salvador,  relying  upon  the  Gospel  nar- 
ratives, reached  the  conclusion  that  the  conviction 
was  legal.  Others  have  decided  in  the  same  way, 
but  reject  those  portions  of  the  Gospels  that 
seem  to  conflict  with  this  view.  Certain  other 
Jewish  writers  are  in  substantial  agreement  with 
the  majority  of  Christian  scholars  in  the  belief 
that  Jesus  was  unjustly  condemned,  but  hold 


PROCEEDINGS  BEFORE  SANHEDRIN    107 

that  the  conviction  was  not  brought  about  by  the 
Sanhedrin,  but  by  a  group  of  priests,  whose  in- 
fluence with  Pilate  was  very  great,  and  whose 
action  did  violence  to  the  feelings  and  the  con- 
science of  contemporary  Jews. 

A  fair  and  impartial  reading  of  the  Gospels 
will  show  that  it  is  quite  impossible  to  regard 
those  narratives  as  historically  accurate  through- 
out, whether  they  are  combined  or  are  taken 
singly,  and  at  the  same  time  to  believe  that  Jesus 
was  tried  in  accordance  with  the  Mosaic  code. 
This  code  was  interpreted  by  the  Jewish  courts 
for  their  own  guidance,  and  is  fully  explained  in 
the  treatise  on  the  criminal  law  in  the  Talmud. 
There  is  scarcely  a  single  episode  in  the  proceed- 
ings against  Jesus  which  can  fairly  be  made  to 
harmonize  with  the  rules  of  criminal  procedure 
which  must  be  followed  to  the  smallest  detail,  ac- 
cording to  the  explicit  commands  of  the  Talmud. 

Even  before  the  actual  trial  began,  certain  im- 
portant irregularities  were  committed.  The 
Sanhedrin  had  held  meetings  at  three  different 
times  to  discuss  the  advisability  of  taking  action 
against  Jesus.  At  the  first  meeting  the  inter- 
mediate decree  of  excommunication,  called  exe- 
cration, was  passed  against  the  followers  of 
Jesus,  and  there  was  discussion  upon  the  desira- 
bility of  enacting  the  extreme  form  of  excom- 
munication, namely  death,  against  Jesus  himself. 
At  the  second  meeting  this  vote  was  actually 


108         THE  PROSECUTION  OF  JESUS 

passed,  and  the  death  of  Jesus  was  decided  upon. 
At  .the  third  meeting,  held  two  days  before  the 
passover,  the  Sanhedrin  no  longer  discussed  an 
appropriate  sentence  for  Jesus,  but  merely 
planned  the  proper  time  and  occasion  for  exe- 
cuting their  previous  decision.  They  were  un- 
certain whether  or  not  they  should  postpone 
carrying  their  plans  into  effect  until  after  the 
feast,  but  the  treachery  of  Judas  offered  an  im- 
mediate opportunity  to  accomplish  their  object 
with  haste  and  success.  It  should  be  pointed  out 
that  the  Gospels  do  not  state,  in  their  accounts 
of  this  third  meeting  of  the  Sanhedrin,  that  the 
discussion  related  in  any  manner  to  discovering 
an  opportunity  for  bringing  Jesus  to  trial.  The 
sources  state  explicitly  that  the  intention  of  this 
body  was  to  "kill"  Jesus  (aTroKreiW),  or  to  "put 
him  to  death"  (di/aXto-Kcu)  which  are  words  dia- 
metrically opposed  to  the  idea  that  they  intended 
to  place  him  on  trial  before  themselves  sitting 
as  a  court.15 

The  decisions  reached  in  the  three  meetings  of 
the  Sanhedrin  were  at  least  irregular  and  con- 
trary to  Hebrew  procedure,  provided  the  San- 
hedrin expected  to  bring  Jesus  to  trial.  The 
Sanhedrin,  like  the  Roman  criminal  courts,  could 
not  originate  prosecutions,  but  could  only  hear 
and  pass  upon  accusations  presented  to  them  by 
self-constituted  prosecutors.  The  Talmud  lays 

is  Mt.  XXVI,  4;  Lk.  XXII,  2. 


PROCEEDINGS  BEFORE  SANHEDRIN   109 

down  the  rule  that  the  witnesses  shall  be  the  ac- 
cusers, and  the  Sanhedrin  shall  act  as  a  jury. 
Moreover,  it  is  contrary  to  the  accepted  prin- 
ciples of  justice  among  all  nations  that  the  court 
have  reached  a  decision,  or  have  shown  prejudice, 
before  the  actual  trial  begins.  And  yet  one 
cannot  avoid  the  suspicion  that  the  evangelists 
have  mistaken  the  purpose  of  the  Sanhedrin.  If 
they  had  formed  the  design  to  kill  Jesus,  it  is 
astonishing  that  they  did  not  carry  their  plan  into 
effect  in  the  garden  of  Gethsemane,  instead  of 
arresting  him.  The  Gospels  say  that  they  wished 
to  do  their  work  "by  subtlety"  (§oA.o>),  "lest  a 
tumult  arise  among  the  people."  If,  however, 
they  desired  to  avoid  arousing  the  feelings  of  the 
people  against  themselves,  the  secret  murder  of 
Jesus  in  the  garden  would  have  been  a  much  less 
potent  stimulus  to  hostility  than  the  illegalities 
so  commonly  assumed  to  have  occurred  later  in 
the  trial  and  the  public  execution. 

In  the  next  place,  only  the  Gospel  of  John 
says  that  Jesus  was  taken  to  the  house  of  Annas, 
and  no  reason  is  assigned  even  there  for  such  an 
occurrence.  This  man,  so  far  as  our  knowledge 
extends,  held  no  official  position  whatever  at  that 
time,  and  the  statement  made  by  many  writers 
that  the  great  influence  of  Annas  made  the  peo- 
ple still  regard  him  as  the  high  priest,  is  mere 
assumption.  That  he  had  much  influence  is  clear 
from  the  fact  that  five  of  his  sons  later  gained 


110          THE  PROSECUTION  OF  JESUS 

the  high  priesthood,  but  that  is  no  reason  for 
taking  a  prisoner  to  him  before  the  trial  occurs. 
That  he  was  one  of  the  two  presidents  of  the 
Sanhedrin  is  another  mere  assumption  made 
many  times  recently.  No  adequate  justification, 
therefore,  can  be  discovered  for  a  conversation 
between  Annas  and  Jesus  as  the  preliminary  to 
a  formal  trial.  Nor  does  John  actually  say  that 
the  two  did  converse.  He  says  that  Jesus  was 
questioned  by  the  "high  priest"  (apx^pevs), 
and  the  attendant  criticized  him  for  the  nature 
of  his  answer  to  the  "high  priest."  For  this 
reason  it  seems  best  to  transfer  the  verse  of  John 
telling  of  the  sending  of  Jesus  to  Caiaphas  to  a 
position  before  the  narrative  of  the  conversation. 
Others  endeavor  to  accomplish  the  same  result  by 
translating  the  verb  (aTreoreiXe^)  "had  sent"  in- 
stead of  giving  it  the  natural  meaning  "sent." 
But  this  is  a  violent  remedy,  and  leaves  the  story 
in  a  most  illogical  condition. 

Even  if  Jesus  was  actually  taken  to  the  house 
of  Annas,  and  even  if  Annas  did  actually  ques- 
tion Jesus  at  length  about  his  teaching  and  his 
disciples,  it  is  still  impossible  to  see  any  real 
ground  for  calling  the  action  of  Annas  illegal. 
This  is  done  by  many,  who  cite  the  Talmud:  "Be 
not  a  sole  judge,  for  there  is  no  sole  judge  but 
One."16  But  John's  account  does  not  say  that 
Annas,  or  Caiaphas,  judged  at  all,  nor  does  it 

,  Pirke  Avoth,  4,  8. 


PROCEEDINGS  BEFORE  SANHEDRIN    111 

say  that  the  answer  given  by  Jesus  to  the  ques- 
tions of  the  high  priest  was  used  against  him 
later.  He  was  not  judging,  but  seeking  informa- 
tion. And  yet  it  is  unscientific  and  insulting  to 
a  person  occupying  the  position  of  Annas  to 
claim,  as  Rosadi  has  done,  that  he  questioned 
Jesus  out  of  mere  curiosity  and  malice.  The 
episode  cannot  be  regarded  as  a  part  of  the  trial, 
and  therefore  the  theory  must  be  wholly  rejected 
that  Jesus,  in  refusing  to  give  a  satisfactory  reply 
to  the  high  priest,  was  standing  on  his  right  as 
a  citizen  not  to  inculpate  himself  by  admissions. 
Jesus  was  taken  from  the  house  of  Annas  to 
that  of  Caiaphas,  where  the  two  meetings  of  the 
Sanhedrin  were  held.  Some  discussion  has  arisen 
concerning  the  number  of  persons  present  at 
each  of  the  two  meetings,  and  certain  writers 
have  supposed  that  only  a  part  of  the  Sanhedrin 
was  present  at  the  first  meeting,  while  there  was 
a  full  attendance  of  all  members  at  the  second. 
The  Sanhedrin  was  composed  of  seventy-one 
members,  but  twenty-three  were  sufficient  to 
form  a  quorum.  The  belief  that  at  the  first  meet- 
ing only  a  comparatively  small  number  was  pres- 
ent is  based  largely  upon  the  difficulty  that  would 
be  experienced  in  securing  a  full  attendance  in 
the  middle  of  the  night.  The  high  priest  and  his 
immediate  coterie  have  been  much  ridiculed  by 
recent  writers  for  their  indecorous  conduct  in 
sending  messengers  about  the  city  to  get  their 


112         THE  PROSECUTION  OF  JESUS 

colleagues  out  of  bed  in  order  to  attend  a  meet- 
ing. It  seems  not  to  have  occurred  to  these 
writers  that  the  very  indecorum  is  adequate 
ground  for  refusing  to  believe  that  the  high  priest 
did  anything  of  the  kind.  Even  if  we  attribute 
the  worst  motives  to  the  high  priest,  we  must  not 
forget  that  the  Gospels  represent  the  Sanhedrin 
as  being  in  fear  of  a  tumult  among  the  people 
provided  Jesus  was  seriously  mistreated  by  them. 
Nothing  could  arouse  the  people  more  than  the 
act  here  attributed  to  the  priestly  faction.  The 
second  reason  for  assuming  that  not  all  were 
present  is  the  statement  made  in  the  Gospels 
that,  when  the  time  for  making  a  decision  arrived, 
the  vote  for  conviction  was  unanimous.  It  is 
claimed  that  Joseph  of  Arimathaea  and  Nicode- 
mus  would  not  have  voted  in  this  way,  which  is 
proof  that  they  at  least  were  not  present.  But 
all  of  this  argument  is  disposed  of  at  once  by  the 
use  in  the  Gospels  of  the  terms  which  describe 
the  two  meetings.  Evidently  the  evangelists 
knew  of  no  difference  in  the  nature  of  the  two 
gatherings.  There  are  two  words  "Sanhedrin" 
(orweSpiov}  and  "council"  (crv/A)SovXtov),  which  are 
used  indiscriminately  in  the  New  Testament 
to  describe  this  body.  Of  these  two  words,  "San- 
hedrin" was  the  technical  term,  while  "council" 
had  a  broader  meaning,  capable  of  being  used 
loosely  to  describe  other  bodies,  as  well  as  to 
designate  the  Sanhedrin.  In  the  passages  im- 


PROCEEDINGS  BEFORE  SANHEDRIN   113 

mediately  under  discussion,  the  word  "San- 
hedrin"  occurs  in  both  Matthew  and  Mark,  the 
only  Gospels  which  mention  the  meeting  at 
night.17  Luke  uses  the  same  word  to  describe 
the  meeting  which  occurred  on  the  following 
morning,  while  it  is  possible  that  Mark  uses  the 
word  "council"  in  his  account  of  that  gathering.18 
But  the  reading  of  the  text  of  Mark  is  by  no 
means  certain.  There  is,  therefore,  no  justifica- 
tion for  the  belief  that  the  meeting  held  in  the 
night  was  but  the  meeting  of  a  committee,  or  of 
a  mere  quorum,  and  that  the  morning  meeting 
was  that  of  the  full  court. 

When  a  trial  occurred  on  a  capital  charge, 
according  to  the  Hebrew  system  of  procedure, 
the  Sanhedrin  expected  to  hear  all  the  evidence 
at  one  session.  If  the  court  then  voted  for  con- 
viction, an  adjournment  must  be  taken  until  the 
following  day,  when  the  court  again  assembled 
and  again  voted  upon  the  question  of  conviction 
or  acquittal.  This  is  the  prescription  of  the 
Talmud :  "If  a  man  is  found  innocent,  the  court 
absolves  him.  But  if  not,  his  judgment  is  put 
off  to  the  following  day.  Meantime  the  judges 
meet  together,  and,  eating  little  meat,  and  drink- 
ing no  wine  during  that  whole  day,  they  confer 
upon  the  cause.  On  the  following  morning  they 
return  into  court."19  If,  therefore,  no  serious 

IT  Mt.  XXVI,  59;  Mk.  XIV,  55. 
is  Lk.  XXII,  66;  Mk.  XV,  1. 
is  Mishna,  Sank.  4,  1 ;  5,  5. 


114          THE  PROSECUTION  OF  JESUS 

effort  was  made  to  have  the  whole  court  assemble 
for  the  first  session,  but  this  session  was  merely 
the  meeting  of  a  committee  or  of  a  council,  the 
court  was  guilty  of  the  extreme  irregularity  of 
holding  only  one  full  meeting  for  the  trial  and 
conviction  of  Jesus.  On  the  other  hand,  if  the 
first  session  was  a  meeting  of  the  full  Sanhedrin, 
the  court  was  guilty  of  an  irregularity  in  holding 
a  session  at  night.  The  Talmud  says :  "Capital 
trials  are  commenced  only  in  the  daytime,  and 
must  also  be  concluded  during  the  day.  .  .  . 
They  may  be  concluded  on  that  day  if  there  is 
a  verdict  of  acquittal,  but  must  be  postponed 
to  a  second  day  if  there  is  to  be  a  condemnation. 
And  for  this  reason  capital  trials  are  not  held 
on  the  day  before  a  Sabbath  or  a  feast-day."20 
The  last  sentence  cited  from  the  Mishna  discloses 
still  another  irregularity.  The  hearing  of  the 
case  against  Jesus  occurred  on  the  day  before 
the  passover,  which  was  definitely  forbidden.  It 
happens  also  that  this  was  the  day  before  the 
Sabbath.  From  all  points  of  view  the  conclusion 
is  inevitable  that  the  Mosaic  code,  as  interpreted 
in  the  Talmud,  absolutely  forbade  the  holding 
of  court  on  the  day  and  at  the  hour  when  the  case 
of  Jesus  was  heard  by  the  Sanhedrin. 

Little  that  was  done  at  the  session  itself  was 
in  harmony  with  the  procedure  required  in  a 
criminal  trial.  The  session  was  held  at  the  house 

20  Mishna,  Sank.  4,  1. 


PROCEEDINGS  BEFORE  SANHEDRIN   115 

of  the  high  priest,  whereas  the  Talmud  says  that 
the  Sanhedrin  may  lawfully  pronounce  a  sen- 
tence of  death  only  in  the  Hall  of  Hewn  Stones : 
"After  leaving  the  Hall  of  Gazith,  no  sentence 
of  death  can  be  passed  against  any  one  soever."21 
Even  from  the  days  of  St.  Paul  the  Christian 
church  constantly  accused  the  Jewish  court  of 
being  responsible  for  an  illegal  conviction  of 
Jesus.  It  is  evident  that  the  search  for  irregu- 
larities in  procedure  had  already  begun,  and  the 
following  passage  in  the  Babylonian  Talmud  re- 
flects the  nature  of  the  accusations,  and  the 
eagerness  of  the  Jews  to  free  themselves  from 
the  charge  of  illegality:  "It  is  important  to 
notice  that  every  time  the  necessities  of  the  case 
required,  the  Sanhedrin  returned  to  the  hall 
Gazith,  or  of  hewn  stones,  as  in  the  case  of  Jesus, 
and  others."22 

The  first  point  mentioned  in  connection  with 
the  actual  hearing  is  that  the  Sanhedrin  sought 
for  witnesses  who  would  testify  against  Jesus. 
This  is  an  irregularity,  for  witnesses  were  ex- 
pected to  appear  voluntarily,  and  to  become  the 
accusers.  In  the  Hebrew  legal  system  no  pro- 
vision was  made  for  official  prosecutors.  Even 
the  Sanhedrin  did  not  take  the  initiative,  but 
waited  for  an  interested  person  to  come  forward 
with  a  charge.  But  in  the  case  of  Jesus  they 

21  Bab,  Talmud,  Aboda  Zara,  1.  fol.  8. 

22  Bab.  Talmud,  Sank.  4,  fol.  37. 


116          THE  PROSECUTION  OF  JESUS 

made  the  arrest  on  their  own  authority,  and  pro- 
ceeded with  the  case  by  calling  for  witnesses. 
However,  it  is  manifestly  absurd  to  say,  as  do 
MM.  Lemann,  that  messengers  were  sent  out 
promiscuously  among  the  crowd  to  summon  wit- 
nesses. How  many  witnesses  appeared  in  re- 
sponse to  the  call  of  the  Sanhedrin  is  not  told, 
nor  is  anything  said  in  the  Gospels  about  the 
contents  of  the  evidence  they  gave,  nor  about  the 
crime  of  which  they  accused  Jesus.  The  one 
"brief  remark  on  the  subject  is  that  they  com- 
mitted perjury,  and  that  they  did  not  agree  with 
one  another.  This  evidence  is  not  mentioned 
further  by  the  evangelists,  which  is  proof  that  it 
was  rejected  by  the  Sanhedrin. 

Finally,  according  to  Mark,  two  witnesses 
said:  "We  heard  him  say,  I  will  destroy  this 
temple  that  is  made  with  hands,  and  in  three  days 
I  will  build  another  made  without  hands."  Mark 
adds  that  even  this  evidence  was  false,  and  that 
the  witnesses  did  not  agree.  Matthew  does  not 
give  the  statement  attributed  to  Jesus  in  the 
same  form  in  which  Mark  gives  it,  nor  does  he  say 
that  the  witnesses  failed  to  agree.  There  is  in- 
deed much  to  prove  that,  whatever  form  Jesus 
adopted  in  making  this  remarkable  statement, 
the  witnesses  were  in  agreement  in  their  declara- 
tion. The  Sanhedrin  had  rejected  the  earlier 
evidence  on  the  ground  that  the  witnesses  failed 
to  agree,  but  they  accepted  the  evidence  now 


PROCEEDINGS  BEFORE  SANHEDRIN   117 

given.  The  rejection  of  evidence  up  to  this  point 
is  positive  proof  that  they  endeavored  to  be  just 
in  their  attitude  toward  Jesus,  or,  at  the  worst, 
they  desired  to  adhere  to  the  canons  of  pre- 
scribed procedure.  They  could  not  be  so  incon- 
sistent as  to  reject  earlier  false  evidence  and  now 
accept  evidence  that  was  demonstrably  also  false. 
In  accordance  with  Hebrew  law,  when  two  wit- 
nesses did  not  agree  absolutely,  the  evidence  of 
both  was  set  aside,  and  one  who  was  guilty  of 
perjury  suffered  the  penalty  prescribed  for  the 
crime  of  which  he  accused  the  defendant.23  It  is 
not  stated  in  the  Gospels  that  those  guilty  of 
perjury  in  this  case  were  prosecuted.  It  may 
be  that  they  were  not  prosecuted,  or  it  may 
equally  well  be  that  the  evangelists  were  not  in- 
terested in  telling  what  happened  to  the  persons 
who  participated  in  the  trial.  It  is  also  to  be 
noticed  that  Jesus  was  not  convicted  even  upon 
this  evidence. 

Apparently  during  all  the  time  that  evidence 
was  being  offered  Jesus  remained  silent,  and  did 
not  even  question  the  witnesses.  A  note  in  the 
Talmud  reads:  "And  R.  Ashi  said,  The  begin- 
ning should  be  with  the  announcement  of  the 
court:  Every  one  who  knows  of  a  defense  con- 
cerning the  defendant  may  come  to  tell  it  before 
the  court."24  But  this  means  only  that  when  the 


,  Sank.  4,  5;  5,  2;  Maimonides,  Sank.  20. 
24  Oemara,  Sank.  4,  1. 


118          THE  PROSECUTION  OF  JESUS 

proper  time  for  the  defense  to  be  heard  should 
arrive,  the  court  would  grant  an  opportunity  to 
all  who  wished  to  offer  evidence  in  behalf  of  the 
defendant.  The  established  procedure  is  given 
in  the  Mishna:  "After  one  witness  was  examined 
they  let  the  second  enter,  and  examined  him. 
And  if  their  testimony  correspond,  the  discussion 
begins  with  the  defense."25  In  the  proceedings 
against  Jesus  the  time  had  now  come  for  him  to 
present  his  own  case.  Obviously  he  made  no  at- 
tempt to  defend  himself,  or  to  summon  witnesses 
in  his  own  behalf.  If  he  did  not  care  to  defend 
himself  the  trial  was  finished,  for  two  witnesses 
had  given  their  evidence  that  Jesus  had  uttered 
a  threat  against  the  temple,  and  thus  satisfied  the 
requirements  of  the  law  of  Moses :  "At  the  mouth 
of  two  witnesses,  or  three  witnesses,  shall  he  that 
is  to  die  be  put  to  death;  at  the  mouth  of  one 
witness  he  shall  not  be  put  to  death."26 

The  common  assumption  is  that  the  high  priest 
did  not  grant  to  Jesus  the  opportunity  of  sum- 
moning witnesses,  nor  of  speaking  in  his  own 
defense.  If  such  were  the  case,  the  irregularity 
in  procedure  would  be  most  striking,  and  the 
whole  case  could  be  declared  invalid,  on  the 
ground  of  privilege  denied  to  one  of  the  parties 
to  the  suit.  But  it  is  proper  to  recall  here  that 

25  Mishna,  Sank.  5,  ]. 

wDeut.  XVII,  6;  cp.  XIX,  18-21;  Numb.  XXXV,  30;  Mishna, 
Sanh.  4,  5;  5,  1. 


PROCEEDINGS  BEFORE  SANHEDRIN   119 

on  the  following  morning  Jesus  refused  to 
answer  Pilate.  This  refusal  was  so  marked  and 
so  noticeable  that  the  Gospels  say :  "And  he  gave 
him  no  answer,  not  even  to  one  word:  insomuch 
that  the  governor  marvelled  greatly."  It  is  but 
natural  to  think  that  the  attitude  which  Jesus 
assumed  in  his  trial  before  Pilate  was  but  a  con- 
tinuation of  the  attitude  he  adopted  when  he  was 
before  the  Jewish  authorities.  The  words  which 
the  high  priest  addressed  to  him  prove  con- 
clusively that  this  is  the  fact:  "Answerest  thou 
nothing?  what  is  it  which  these  witness  against 
thee?"  Jesus  had  the  opportunity  to  present  his 
case,  but  did  not  wish  to  avail  himself  of  the 
privilege  which  was  guaranteed  to  every  citizen 
of  Judea  when  on  trial.  It  seems  necessary  to 
interpret  the  question  of  the  high  priest  as 
equivalent  to  a  request  to  Jesus  to  offer  a  de- 
fense, if  he  had  any  defense  that  could  be  offered. 
Even  this  brought  no  response  from  the  ac- 
cused, and  finally  the  high  priest  came  directly 
to  the  vital  point  by  asking  Jesus  whether  he 
was  the  son  of  God:  "I  adjure  thee  by  the  living 
God,  that  thou  tell  us  whether  thou  art  the  Christ, 
the  Son  of  God."  Then  at  last  Jesus  made 
answer,  and  his  reply  was  in  the  affirmative :  "I 
am,"  or  "Thou  sayest,"  which  are  practically 
equivalent  expressions.  This  questioning  of 
Jesus  by  Caiaphas  has  been  almost  universally 
regarded  as  a  serious  irregularity,  on  the  ground 


120         THE  PROSECUTION  OF  JESUS 

that  a  judge  must  not  also  be  an  accuser:  "If  an 
unrighteous  witness  rise  up  against  any  man  to 
testify  against  him  of  wrongdoing,  then  both  the 
men,  between  whom  the  controversy  is,  shall 
stand  before  Jehovah,  before  the  priests  and  the 
judges  that  shall  be  in  those  days;  and  the  judges 
shall  make  diligent  inquisition:  and,  behold,  if 
the  witness  be  a  false  witness,  and  have  testified 
falsely  against  his  brother,  then  shall  ye  do  unto 
him,  as  he  had  thought  to  do  unto  his  brother."27 
But  this  passage  does  not  specify  in  what  manner 
the  judge  was  to  ascertain  whether  the  witness 
was  guilty  of  perjury;  there  is  nothing  to  show 
that  he  was  not  at  liberty  to  question  either  party. 
The  usual  interpretation,  moreover,  misunder- 
stands the  significance  of  the  whole  episode. 
Witnesses  had  just  given  evidence  that  Jesus 
laid  claim  to  a  power  which  it  was  simply  im- 
possible that  a  human  being  could  possess,  and 
Jesus  did  not  deny,  or  attempt  to  disprove,  the 
charges  they  made  against  him.  That  would  be 
sufficient  in  any  court  of  law  to  justify  an  im- 
mediate conviction.  There  was  no  occasion, 
therefore,  for  Caiaphas  to  question  Jesus  at  all, 
for  he  had  the  convincing  evidence  before  him. 
Many  ancient  writers  looked  upon  Caiaphas  as 
a  hardened  sinner,  and  almost  all  modern  writers 
have  accepted  that  estimate  of  him.  But  the 
high  priest  might  nevertheless,  as  a  Jew,  be  hor- 

2T  Deut.  XIX,  16-19;  Maccoth,  Oemara  1. 


PROCEEDINGS  BEFORE  SANHEDRIN   121 

rifled  that  any  person  should  allow  a  claim  to 
divine  power  to  be  imputed  to  him  without  a 
direct  disavowal,  and  he  might,  in  his  amazement 
and  horror,  turn  to  the  accused  and  request  him 
to  disavow  that  monstrous  claim.  Jesus  not  only 
refused  to  accede  to  the  request,  but  actually  ac- 
cepted the  charge  with  all  it  implied,  and  with  all 
its  consequences. 

It  is  also  maintained  by  many  that  the  words 
of  the  high  priest  are  equivalent  to  placing  the 
accused  on  the  witness  stand,  and  to  putting  him 
on  oath.  This  would  be  illegal,  if  it  was  intended 
thereby  to  force  the  defendant  to  a  confession. 
But  one  who  assumes  that  this  was  the  attitude 
of  the  high  priest  is  using  the  narratives  of  the 
Gospels  less  fairly  and  candidly  than  he  would 
use  any  other  historical  documents.  "I  adjure 
thee  by  the  living  God"  seems  to  be  somewhat 
the  form  in  which  the  oath  was  administered,  but 
it  cannot  be  reasonably  construed  into  anything 
more  than  a  solemn  warning  to  the  accused  that 
he  should  not  admit  a  serious  charge  leading  to 
a  capital  sentence  without  realizing  the  solemnity 
of  his  position.  There  is  preserved  in  the  Talmud 
the  form  which  the  high  priest  might  use  in  ad- 
dressing a  witness  in  a  capital  case:  "It  is  not 
conjecture,  nor  anything  you  may  have  gathered 
from  public  rumor,  that  we  ask  of  you.  Remem- 
ber that  a  heavy  responsibility  rests  on  you;  that 
it  is  not  a  question  of  money  where  restitution 


122          THE  PROSECUTION  OF  JESUS 

can  be  made.  If  you  should  cause  the  accused 
to  be  condemned  unjustly,  his  blood — yea,  even 
the  blood  of  his  posterity — shall  cry  for  ven- 
geance against  you,  and  God  will  hold  you  ac- 
countable, even  as  he  did  Cain  for  the  blood  of 
his  brother  Abel."28  The  adjuration  of  Caiaphas 
is  probably  only  an  abbreviated  form  of  this 
address,  and  no  less  could  be  anticipated  in  view 
of  the  great  seriousness  of  the  situation  of  Jesus 
at  the  moment.  But  even  with  this  solemn  warn- 
ing Jesus  did  not  deny,  but  rather  affirmed  the 
accusation,  so  that  the  high  priest  turned  to  the 
Sanhedrin,  and  exclaimed:  "Ye  have  heard  the 
blasphemy:  what  think  ye?"  And  the  Sanhedrin 
unanimously  voted  that  Jesus  was  guilty  of  a 
capital  offense  through  his  confession  that  he  was 
the  son  of  God. 

In  this  section  of  the  meeting,  there  are  many 
things  which  run  counter  to  the  regulations  gov- 
erning Hebrew  criminal  trials.  The  Talmud 
states  definitely  that  confession  does  not  warrant 
conviction,  unless  the  fact  is  properly  attested 
by  two  other  witnesses:  "We  have  it  as  a  funda- 
mental principle  of  our  jurisprudence  that  no  one 
can  bring  an  accusation  against  himself.  Should 
a  man  make  confession  of  guilt  before  a  legally 
constituted  court,  such  confession  is  not  to  be 
used  against  him  unless  properly  attested  by  two 
other  witnesses."29  The  records  of  Matthew  and 

28  Mishna,  Sank.  4,  5. 
Sank.  4,  2. 


PROCEEDINGS  BEFORE  SANHEDRIN   123 

Mark  do  not  state  that  the  witnesses  had  testified 
that  Jesus  called  himself  the  son  of  God,  but  it 
is  possible  to  assume  that  the  Gospel  records  of 
the  trial  are  incomplete.  It  was  undoubtedly 
rumored  about  the  country  that  Jesus  had  been 
called  by  this  title,  and  that  he  had  not  at  all 
denied  its  propriety.30  In  fact  on  one  occasion 
he  had  actually  called  himself  by  this  name.31 

Certain  scholars  contend  that  the  admission 
of  the  validity  of  the  accusation,  even  when 
strengthened  by  the  concurrence  of  two  wit- 
nesses, did  not  warrant  conviction.  It  is  said  that 
Jesus  could  not  be  considered  guilty  of  the  crime 
of  blasphemy  merely  because  he  called  himself 
the  son  of  God,  for  that  would  not  be  an  offense 
of  sufficient  gravity  to  be  regarded  as  blasphemy. 
This  contention  will  be  examined  later,  but  for 
the  present  the  sole  point  at  issue  is  the  deter- 
mination of  the  regularity  or  illegality  of  the 
proceedings.  On  this  point  it  is  often  held  that 
the  claim  of  Jesus  might  be  construed  as  blas- 
phemy, provided  the  claim  was  false.  If,  on  the 
other  hand,  the  claim  was  true,  Jesus  was  not 
guilty  of  offending  against  the  criminal  code  to 
the  smallest  degree.  When,  therefore,  Jesus  ad- 
mitted himself  to  be  the  ^on  of  God,  it  became 
the  duty  of  the  Sanhedrin  to  investigate  the  truth 

so  Mt.   VIII,  29;   Mk.    Ill,  11;  Lk.    IV,    41;    VIII,    28;    Jn. 
I,  34;  XI,  27. 
si  Jn.  IX,  35-37. 


124          THE  PROSECUTION  OF  JESUS 

or  falsity  of  the  admission.  And  the  Hebrew 
jurisprudence  expressly  recognized  the  necessity 
for  such  investigation  in  cases  of  prosecution  for 
false  prophecy.  No  doubt  Hebrews  learned  in 
the  law  would  say  that  the  same  procedure 
should  apply  in  the  case  of  one  who  claimed  to  be 
the  son  of  God,  but  it  is  extremely  improbable 
that  a  case  similar  to  that  of  Jesus  had  ever 
arisen.  How  would  a  modern  court  of  justice 
proceed  in  such  a  situation? 

When  the  high  priest  turned  to  the  members 
of  the  Sanhedrin,  and  announced  that  Jesus  had 
spoken  blasphemous  words,  he  committed  a  very 
grave  irregularity  from  the  standpoint  of  the 
Jewish  criminal  procedure.  For,  after  declaring 
publicly  his  own  opinion,  he  called  for  an  ex- 
pression of  opinion  on  the  part  of  his  colleagues. 
But  orderly  procedure  required  that  the  young- 
est member  of  the  court  should  be  the  first  to 
express  his  opinion,  and  the  voting  should  pro- 
ceed gradually  toward  the  oldest  and  most  re- 
vered among  the  Sanhedrists.  The  purpose  of 
this  rule  was  to  prevent  the  younger  and  less 
experienced  members  from  being  unduly  influ- 
enced by  the  decision  of  their  elders.  But  in  this 
case  the  member  of  highest  rank  stated  at  the 
very  outset  how  he  intended  to  vote  on  the  ques- 
tion of  the  guilt  or  innocence  of  Jesus. 

The  last  irregularity  in  connection  with  this 
meeting  consists  in  the  fact  that  the  verdict 


PROCEEDINGS  BEFORE  SANHEDRIN   125 

against  Jesus  was  unanimous.  The  general  prin- 
ciple announced  in  the  Talmud  is  that  there  must 
be  at  least  two  more  votes  for  conviction  than 
there  are  for  acquittal  in  order  that  a  conviction 
may  be  considered  legal.  "And  then  if  thirty- 
six  acquit  and  thirty-five  condemn,  he  is  acquit- 
ted ;  but  if  vice  versa,  the  discussion  is  prolonged 
until  one  of  the  accusers  accepts  the  opinion  of 
the  acquitters."32  But  Hebrew  jurisprudence 
had  also  the  curious  rule  that  a  unanimous  vote 
for  conviction  set  the  defendant  free:  "The 
whole  body  must  not  accuse."33  This  is  explained 
by  a  not  very  definite  note  written  on  an  earlier 
section  of  the  Mishna:  "R.  Kahana  said:  If 
all  the  persons  of  the  Sanhedrin  are  accusing, 
the  defendant  becomes  free.  Why  so?  Because 
there  is  a  tradition  that  such  a  trial  must  be  post- 
poned for  one  night,  as  perhaps  some  defense 
may  be  found  for  him ;  but  if  all  accuse  him,  it  is 
not  to  be  supposed  that  some  will  find  any  de- 
fense for  him  over  night,  and  therefore  they  are 
no  longer  competent  to  decide  in  his  suit."34  This 
is  taken  to  mean  that  the  feeling  of  the  Jews  was 
that,  if  a  defendant  had  not  a  single  friend  in  the 
court  to  take  his  side  in  the  controversy,  the  court 
must  certainly  be  prejudiced  against  the  de- 
fendant. When,  therefore,  the  court  pronounced 

32  Mishna,  Sank.  5,  1 ;  cp.  4,  1. 

33  Mishna,  Sanh.  4,  1. 

34  Gemara,  Sanh.  1,  1. 


126          THE  PROSECUTION  OF  JESUS 

a  unanimous  verdict  against  Jesus,  the  defendant 
should  have  been  declared  free. 

As  soon  as  Jesus  was  pronounced  guilty,  the 
session  adjourned,  only  to  assemble  again  on  the 
following  morning.  Luke  says  that  this  meeting 
occurred  "as  soon  as  it  was  day,"  while  Matthew 
and  Mark  say  only  that  it  took  place  "early." 
There  is  probably  no  actual  discrepancy  here,  for 
upon  the  most  essential  point  they  are  in  com- 
plete agreement.  The  whole  case  against  Jesus 
was  finished  early  on  that  morning.  There  are 
two  striking  irregularities  here.  The  first  is  that 
the  session  was  begun,  and  no  doubt  finished, 
before  the  morning  sacrifice:  "The  Sanhedrin  sat 
from  the  close  of  the  morning  sacrifice  to  the 
time  of  the  sacrifice."35  But  the  morning  sacrifice 
was  not  completed  until  about  nine  o'clock,  and 
the  meeting  was  certainly  concluded  before  that 
hour.  The  second  irregularity  is  clear  from  a 
passage  which  has  already  been  cited,  to  the 
effect  that  if  a  verdict  of  guilty  was  reached  in 
the  first  session  there  must  be  a  second  session 
on  the  following  day,  in  order  to  ratify,  or  allow 
an  opportunity  for  a  change  of  verdict.  But, 
since  the  Hebrew  day  began  with  sunset  and  con- 
tinued until  the  following  sunset,  these  two  meet- 
ings were  held  on  the  same  day.  This  would 
render  the  decision  of  the  court  invalid.  The 
reason  for  the  rule  is  that  in  a  matter  so  serious 

ss  Jer.  Sank.  1,  fol.  18. 


PROCEEDINGS  BEFORE  SANHEDRIN   127 

as  capital  punishment  the  court  wished  to  pro- 
ceed slowly,  in  order  to  avoid  every  possibility 
of  error  in  their  decision.  In  this  case  they  pro- 
ceeded with  a  rapidity  forbidden  by  their  own 
law. 

A  review  of  the  history  of  the  case  down  to  the 
time  at  which  Jesus  was  surrendered  to  Pilate 
makes  certain  facts  stand  out  prominently.  It 
cannot  be  admitted  that  the  arrest  was  illegal,  nor 
were  any  of  the  authenticated  circumstances  con- 
nected with  it.  But  the  proceedings  beginning 
with  this  point  are  very  irregular  in  many  respects. 
Viewed  broadly,  the  most  fundamental  objection 
to  the  conduct  of  the  case  is  found  in  the  spirit 
of  antagonism  displayed  toward  Jesus.  A  fair 
reading  of  the  Gospels  indicates  that,  even  before 
the  arrest,  the  members  of  the  Sanhedrin  had 
determined  that  the  punishment  of  death  should 
be  inflicted  upon  Jesus.  Having  already  reached 
a  decision  in  their  own  minds,  the  Sanhedrists 
could  not  possibly  be  considered  an  unbiased 
court.  This  attitude  of  hostility  is  almost  uni- 
versally felt  in  the  conduct  of  the  proceedings 
after  the  arrest  took  place. 

Capital  punishment  was  becoming  rare  among 
the  Jews,  and  many  Jewish  thinkers  were  of  the 
opinion  that  it  should  be  entirely  abolished.  Thus 
the  Talmud  says:  "The  Sanhedrin  which  as  often 
as  once  in  seven  years  condemns  a  man  to  death 
is  a  slaughter-house.  R.  Eliezar  ben  Azariach 


128          THE  PROSECUTION  OF  JESUS 

said:  Even  one  which  does  so  once  in  seventy 
years  is  considered  such.  Both  R.  Tarphon  and 
R.  Aqiba  said:  If  we  were  among  the  Sanhe- 
drin,  a  death  sentence  would  never  occur.  To 
which  R.  Simeon  ben  Gamaliel  said:  Such 
scholars  would  only  increase  bloodshed  in 
Israel."88  Another  writer  in  the  Talmud  gives 
the  following  reason  for  the  rarity  of  capital 
sentences:  "What  does  God  say  (if  one  may 
speak  of  God  after  the  manner  of  men)  when  a 
malefactor  suffers  the  anguish  due  to  his  crime? 
He  says:  My  head  and  my  limbs  are  pained. 
And  if  He  so  speaks  of  the  sufferings  even  of  the 
guilty,  what  must  He  utter  when  the  righteous 
is  condemned?"37 

Notwithstanding  the  fact  that  these  rules  of 
procedure  were  drawn  in  such  a  way  that  they 
seemed  to  favor  the  defendant  to  a  remarkable 
degree,  the  Talmud  furnishes  evidence  that  the 
Sanhedrin  did  not  abide  by  them  in  all  instances: 
"Said  R.  Hanina:  'Righteousness  lodged  therein, 
but  now  murderers/  (Is.  I,  21) — which  means, 
formerly  they  used  to  postpone  the  condemnation 
for  a  night,  and  now  that  they  are  not  doing  so 
they  are  considered  murderers."38  Apparently 
then  the  haste  with  which  the  case  of  Jesus  was 
disposed  of  was  not  without  precedent,  and  possi- 
bly was  not  uncommon.  One  may  hazard  the 

**Mishna,  Maccoth,  1,  10. 
37  Mishna,  Sank.  6,  5. 
SB  Gemara,  Sank.  4,  1. 


PROCEEDINGS  BEFORE  SANHEDRIN   129 

conjecture  that  the  Sanhedrin  saw  no  reason  for 
delaying  sentence  when  they  felt  that  the  case 
had  been  demonstrated  beyond  the  possibility 
of  doubt. 

Among  modern  writers  the  search  for  illegal- 
ities in  the  prosecution  of  Jesus  has  been  carried 
forward  with  the  utmost  zeal.  The  eagerness 
with  which  each  irregularity  in  procedure  is 
greeted  reminds  one  forcibly  of  the  mad  search 
for  nuggets  of  gold  by  the  Argonauts  o.f  Cali- 
fornia, or  by  the  multitudes  who  raced  to  the 
Klondyke.  One  writer  thinks  he  has  discovered 
twenty-seven  irregularities  in  the  conduct  of  the 
case.  But  this  very  zeal  leads  inevitably  to  ex- 
cesses, a  thing  which  invariably  happens  when 
historical  investigations  are  carried  on  with  pas- 
sion or  pre-existing  bias.  It  is  hard  to  avoid 
the  belief  that  the  majority  of  modern  investiga- 
tors are  just  as  much  prejudiced  against  the 
Sanhedrin  as  they  themselves  claim  the  Sanhe- 
drin was  prejudiced  against  Jesus. 

It  is  scarcely  worth  while  to  examine  all  of 
these  assumed  irregularities  in  detail.  Many  of 
them  have  already  been  treated — some  of  them 
have  been  admitted,  and  others  have  been  refuted. 
But  a  careful  consideration  of  the  whole  set  of 
circumstances  will  show  that  one  of  three  con- 
clusions is  possible.  First,  that  the  Gospel  narra- 
tives do  not  give  even  an  approximation  to  the 
true  history  of  this  event,  but  that  Jesus  had  a 


130          THE  PROSECUTION  OF  JESUS 

fair  and  legal  trial.  Secondly,  that  the  trial  of 
Jesus  was  illegal  from  beginning  to  end,  and  was 
a  disgrace  to  the  Hebrew  system  of  procedure. 
Thirdly,  that  the  proceedings  before  the  Sanhe- 
drin  were  not  in  any  way  intended  to  constitute 
a  trial  leading  to  a  conviction. 

If  Jesus  had  a  fair  and  legal  trial,  it  must  be 
maintained  that  the  accounts  of  the  episode  given 
by  the  Gospel  narrators  are  exceedingly  faulty. 
It  follows  that  Matthew  and  Mark  must  be  abso- 
lutely in  error  in  stating  that  the  first  hearing 
occurred  at  night,  for  that  was  illegal;  Luke 
must  be  wrong  in  giving  an  account  of  only  one 
hearing,  for  there  must  be  two,  in  order  to  render 
a  conviction  legal;  John's  account  must  be  ex- 
tremely defective,  for  he  does  not  mention  even 
a  single  examination  by  the  Sanhedrin.  Matthew, 
Mark  and  Luke  must  be  wrong  in  saying  that 
the  trial  took  place  during  the  night  and  early 
morning  following  the  passover,  for  it  was  un- 
lawful to  hold  court  during  a  festival.  All  four 
Gospels  must  be  wrong  in  stating  that  the  trial 
occurred  on  the  day  before  the  Sabbath,  for  it 
was  forbidden  to  hold  court  on  that  day. 
Matthew  and  Mark  must  be  wrong  in  stating 
that  the  Sanhedrin  tried  to  secure  witnesses,  for 
that  would  be  illegal.  Matthew,  Mark  and  Luke 
must  be  wrong  in  representing  the  high  priest 
as  giving  his  opinion  before  the  younger  mem- 
bers of  the  court  had  voted,  for  that  was  contrary 


PROCEEDINGS  BEFORE  SANHEDRIN   131 

to  all  the  rules  of  procedure.  All  of  the  Gospels 
must  be  in  error  in  stating  that  only  a  few  hours 
elapsed  between  the  arrest  and  the  execution,  for 
a  trial  could  not  legally  be  so  compressed.  Many 
would  hold  that,  if  Jesus  had  a  legal  trial,  the 
four  Gospels  contain  far  more  errors  than  those 
enumerated. 

If  one  adopts  the  view  that  the  hearing  of 
Jesus  before  the  Sanhedrin  was  an  illegal  trial, 
and  was  a  disgrace  to  the  Hebrew  system  of 
jurisprudence,  he  may  readily  hold  that  the  nar- 
ratives of  the  Gospels  are  correct  in  every  detail. 
In  that  case  the  various  items  in  which,  on  the 
first  theory,  the  Gospels  were  in  error  will  now 
be  attributed  to  the  Sanhedrin  as  instances  of 
illegality.  But  along  with  this  usually  goes  the 
doctrine  that  the  Gospel  narratives  are  absolutely 
complete  in  their  portrayal  of  every  incident  in 
the  episode.  In  accordance  with  this  view, 
nothing  was  done  which  is  not  mentioned  in  the 
Gospels.  For  instance,  since  the  Gospels  do  not 
say  explicitly  that  the  oath  was  administered  to 
the  witnesses,  it  is  assumed  that  the  oath  was  not 
administered.  This  is  called  a  very  serious  ex- 
ample of  illegality.  The  Gospels  do  not  state 
that  witnesses  for  the  defense  were  summoned, 
and  the  conclusion  is  drawn  that  the  defendant 
was  not  granted  the  opportunity  to  summon  wit- 
nesses. Salvador  long  ago  summed  up  in  four 
rules  the  characteristics  of  a  Jewish  criminal  case : 


132          THE  PROSECUTION  OF  JESUS 

"Strictness  in  the  accusation,  publicity  in  the  dis- 
cussion, full  freedom  granted  to  the  accused  and 
assurance  against  all  danger  of  errors  of  testi- 
mony." The  Gospels  do  not  say  explicitly  that 
the  Sanhedrin  adhered  to  any  one  of  these  four 
rules,  and  the  conclusion  is  drawn  that  they  did 
not  actually  adhere  to  any  one  of  them. 

One  who  argues  in  this  manner  would  be  com- 
pelled, of  course,  to  reject  all  newspaper  reports 
of  any  modern  criminal  trial.  Very  rarely  is  the 
indictment  reported  in  its  exact  form.  Almost 
never  does  a  newspaper  state  that  the  oath  was 
administered  to  a  witness.  Possibly  a  closer 
analogy  would  be  the  assumption  that,  because 
the  newspapers  do  not  mention  these  things, 
therefore  one  should  conclude  that  they  were  not 
done,  and  that  the  trial  was  illegally  conducted. 
In  this  spirit  one  writer  asks  the  following  re- 
markable question:  "Was  it  ever  known  in  the 
criminal  jurisprudence  of  any  land  or  age  to 
arraign  a  person  without  a  charge?"  The  Gos- 
pels do  not  mention  an  actual  charge  made 
against  Jesus  before  the  Sanhedrin,  but,  if  there 
was  none,  Luke  must  have  been  guilty  of  wilfully 
composing  one  in  very  technical  language:  "We 
found  this  man  perverting  our  nation,  and  for- 
bidding to  give  tribute  to  Caesar,  and  saying  that 
he  himself  is  Christ  a  king."  On  the  same  theory 
one  would  be  compelled  to  cast  aside  the  trials 
of  Naboth,39  and  Jeremiah,40  for  those  cases  are 

3»1  Kings,  XXI,  1-29;  2  Kings,  IX,  22-26. 
.  XXVI,  1-24. 


PROCEEDINGS  BEFORE  SANHEDRIN   133 

not  reported  in  any  manner  different  from  the 
reports  of  the  trial  of  Jesus. 

The  Talmud  says:  "The  following  seven  ques- 
tions must  be  propounded  to  each  witness :  Was 
it  during  a  year  of  jubilee?  Was  it  in  an  ordinary 
year?  In  what  month?  On  what  day  of  the 
month?  At  what  hour?  In  what  place?  Do  you 
identify  this  person?"41  Wherefore  it  has  been 
said  of  the  witnesses  against  Jesus :  "These  were 
not  sworn  and  charged.  They  did  not  depose  to 
the  identity  of  the  accused.  They  were  not  ex- 
plicit as  to  the  time  nor  the  circumstances.  No 
two  of  them  agreed  together."  All  of  this  merely 
because  the  Gospels  do  not  mention  these  various 
details.  The  absurdity  is  patent. 

Those  who  will  not  allow  a  word  to  be  added 
to  the  accounts  of  the  trial  of  Jesus  are  some- 
times themselves  guilty  of  making  additions.  For 
instance,  the  writer  last  cited  makes  the  unwar- 
ranted statement,  characterizing  the  witnesses: 
"They  were  lewd  fellows  to  begin  with,  and 
bribed  for  their  evidence.  Still,  with  all  their 
cunning,  they  could  not  harmonize."  One  won- 
ders from  what  extra-canonical  source  this  writer 
derived  his  information,  for  no  such  statement 
occurs  in  the  canonical  Gospels.  When  a  modern 
writer  wishes  to  add  something  to  the  simple 
accounts  of  the  evangelists,  he  should  be  expected 
to  show  sufficient  judgment  to  make  his  additions 

4i  Mishna,  Sank.  5,  1.  . 


134          THE  PROSECUTION  OF  JESUS 

reasonable.  The  fact  that  the  witnesses  did  not 
harmonize  is  ample  proof  that  the  Sanhedrin  was 
endeavoring  to  conduct  an  honest  investigation. 
Can  it  be  believed  that  the  Sanhedrists  were  so 
stupid  that  they  were  unable  to  coach  their  wit- 
nesses to  avoid  discrepancies?  Or  can  it  be  be- 
lieved that  "cunning"  witnesses  were  not  cunning 
enough  to  make  their  evidence  harmonize?  It 
must  not  be  forgotten  that  the  investigation  had 
been  planned  for  several  months.  For  this  reason 
we  must  attribute  either  honesty  or  stupidity  to 
the  Sanhedrists — there  is  no  third  possibility, 
unless  we  admit  that  the  stories  of  the  Gospels 
are  utterly  misleading. 

It  is  simply  unbelievable  that  any  court  could 
conduct  such  a  travesty  of  its  own  legal  system 
as  one  must  assume  the  Sanhedrin  did,  provided 
it  is  held  that  the  court  was  actually  conducting 
a  criminal  prosecution  against  Jesus.  It  would 
be  without  parallel  in  the  world's  history,  for  no 
other  example  could  be  found  where  a  court, 
having  an  elaborately  defined  procedure,  delib- 
erately threw  to  the  winds  every  atom  of  its  own 
code.  There  is  a  third  hypothesis,  and  it  is  the 
only  one  which  would  appear  reasonable  to  those 
who  have  carefully  studied  the  Roman  system 
of  the  administration  of  provinces,  and  especially 
the  methods  of  applying  the  law  in  the  subject 
states.  Only  Mark  says  that  the  Sanhedrin 
"condemned,"  or  "convicted"  Jesus (Ka.TtKpi.vav)* 

«  Mk.  XIV,  64. 


PROCEEDINGS  BEFORE  SANHEDRIN     135 

while  Matthew,  based  upon  Mark,  corrects  the 
word  of  his  source,  and  declares  that  the  Sanhe- 
drin  pronounced  Jesus  "worthy  of,"  or  "liable 
to"  death.  In  no  other  passage  is  there  any  ex- 
pression which  could  lead  one  to  assume  that  the 
Sanhedrin  passed  a  formal  sentence  upon  Jesus. 

Here,  then,  is  the  clue  to  the  real  situation. 
The  Sanhedrin  conducted  an  investigation  into 
the  charges  that  were  being  made  against  Jesus, 
to  see  whether  these  were  sufficiently  well 
founded  to  justify  them  in  preparing  an  indict- 
ment against  Jesus  for  submission  to  the  Roman 
court.  When  Tacitus,  in  his  history  of  the  reign 
of  Tiberius,  spoke  in  one  brief  sentence  of  the 
crucifixion  of  Christ,  he  placed  all  responsibility 
upon  Pilate,  for  it  could  not  have  occurred  to  a 
Roman  mind  that  any  person  in  a  province  could 
be  tried  by  an  authority  other  than  the  Roman. 

In  John's  account  of  the  proceedings  before 
Pilate  a  little  later,  the  first  remark  which  Pilate 
is  represented  as  addressing  to  the  Jews  is  the 
question:  "What  accusation  bring  ye  against 
this  man?"43  He  did  not  ask  for  a  copy  of  the 
verdict  of  the  Hebrew  court  in  the  case  of  Jesus. 
He  assumed  that  the  Jews  were  there  to  institute 
proceedings  against  their  prisoner,  and  not  to 
ask  him  for  his  sanction  of  a  verdict  found  by 
them.  There  can  be  no  doubt  that  Pilate  con- 
ducted a  regular  trial  in  his  own  court,  and  the 

«  Jn.  XVIII,  29. 


136          THE  PROSECUTION  OF  JESUS 

hypothesis  now  advanced  relieves  us  from  the 
necessity  of  assuming  that  Jesus  was  twice  tried 
for  the  same  offense,  which  would  be  an  im- 
possible situation  under  the  Roman  criminal 
system. 


CHAPTER  VI 

CRIMINAL  TRIALS  IN  THE  ROMAN  PROVINCES 

The  traditional  view  of  the  history  of  the  trial 
of  Jesus  endeavors  to  establish  two  impossible 
theses.  The  first  of  these  is  that  it  would  be  per- 
missible under  the  Roman  system  for  a  native 
court  in  a  province  to  try  a  serious  criminal  case, 
and  for  the  Roman  authorities  to  reserve  for 
themselves  merely  the  right  to  review  the  findings 
of  the  native  court.  The  second  is  that  a  trial  in 
a  province  was  conducted  in  the  same  manner  as 
one  in  the  city  of  Rome.  Those  who  maintain 
the  first  thesis  have  for  their  object  the  securing 
of  proof  that  Jesus  was  tried  by  the  Sanhedrin, 
and  that  his  trial  was  illegal  because  it  did  not 
conform  to  the  requirements  of  procedure  in 
Hebrew  criminal  cases.  Those  who  maintain  the 
second  of  these  hypotheses  do  so  in  order  to  prove 
that  the  trial  before  Pilate  was  illegal,  in  that  it 
did  not  conform  to  the  procedure  adopted  in  the 
criminal  courts  at  Rome.  The  purpose  of  the 
present  chapter  is  to  show  that  the  traditional 
view  is  erroneous  in  both  of  its  fundamental 
positions. 

137 


138          THE  PROSECUTION  OF  JESUS 

The  writers  on  the  trial  frequently  refer  in 
support  of  their  contention  to  a  remark  made  by 
Greenidge,  to  the  effect  that  in  the  cases  he  was 
then  discussing  a  trial  in  a  province  would  prob- 
ably be  conducted  in  the  same  manner  as  one  on 
a  similar  subject  in  Rome  itself.  But  Greenidge 
was  discussing  only  private  suits,  and  did  not 
refer  to  criminal  suits  at  all.  In  the  part  of  his 
book  in  which  he  treats  criminal  procedure,  he 
has  not  a  single  word  to  say  about  the  manner 
in  which  criminal  cases  in  the  provinces  pro- 
ceeded. The  reason  for  this  silence  is  obvious. 
His  book  appeared  in  1894,  several  years  before 
the  discovery  and  publication  of  the  great  masses 
of  papyri  found  in  Egypt.  Our  knowledge  of 
the  provincial  criminal  courts  must  for  the  pres- 
ent be  derived  almost  exclusively  from  these. 
Scattered  here  and  there  throughout  Greek  and 
Latin  literature  and  inscriptions  are  sporadic 
statements  which  show  to  a  small  extent  how 
legal  matters  were  managed.  But  these  are 
altogether  too  slight  to  afford  a  clear  view  of  the 
methods  pursued,  or  of  the  degree  to  which  the 
provincials  could  expect  a  fair  and  adequate 
treatment  of  their  legal  difficulties.  For  this 
reason  Greenidge,  Rein,  and  others  who  wrote 
before  the  discovery  of  the  papyri,  were  abso- 
lutely silent  on  this  topic,  while  Geib  merely  at- 
tempted to  draw  a  few  uncertain  conclusions 
from  the  only  two  cases  reported  in  any  degree 


CRIMINAL  TRIALS  139 

of  fulness,  those  of  Jesus  and  Paul.  Mommsen's 
work  on  the  Roman  criminal  law  appeared  just 
as  the  publication  of  the  papyri  was  beginning, 
and  consequently  he  had  little  to  say  about  it. 
Even  Strachen-Davidson,  whose  important  book 
was  written  a  dozen  years  after  large  discoveries 
of  papyri  were  made,  almost  neglected  this  kind 
of  evidence,  partly,  no  doubt,  because  the  material 
had  not  yet  been  fully  correlated,  but  especially 
because  provincial  procedure  was  beyond  the 
scope  of  his  work,  which  was  controversial  in  its 
nature. 

As  early  as  1902  Wenger  attempted  to  treat 
the  legal  facts  regarding  Egypt,  so  far  as  they 
had  then  been  brought  to  light  in  the  papyri,  and 
constructed  a  most  valuable  account  of  Roman 
procedure  in  that  province.  But  this  book  was 
written  when  many  of  the  papyri  in  the  British 
Museum,  and  many  of  those  found  at  Oxyrhyn- 
chus,  were  still  unpublished,  and  was,  there- 
fore, incomplete.  It  was  not  until  1912  that  the 
papyri  were  studied  in  all  their  bearings,  and 
with  full  knowledge  of  the  facts.  The  second  of 
the  two  volumes  by  Mitteis  and  Wilcken  forms 
a  great  landmark  in  the  history  of  the  study  of 
Roman  law,  and  incidentally  adds  a  new  chapter 
to  our  knowledge  of  Roman  administration  in 
the  provinces. 

Enough  has  been  said  to  show  that  no  treat- 
ment of  the  trial  of  Jesus,  written  prior  to  1912, 


140          THE  PROSECUTION  OF  JESUS 

could  have  been  adequate,  for  the  simple  reason 
that  the  only  systematic  investigation  of  the 
material  contained  in  the  papyri  had  not  yet  been 
published.  It  may  also  be  said  that  students  of 
this  trial  have  failed  to  make  use  of  Wenger's 
study,  as  shown  by  the  fact  that,  if  they  had 
studied  it,  they  would  certainly  have  been  saved 
from  many  of  the  errors  they  make.  Serious 
students  of  the  Roman  law,  long  before  the  dis- 
covery of  the  Egyptian  papyri,  had  avoided  the 
mistake  of  attempting  to  apply  the  criminal  pro- 
cedure of  the  city  of  Rome  to  cases  arising  in 
the  provinces.  No  one  can  thoughtfully  read  the 
historical  works  of  Tacitus,  or  the  letters  of 
Pliny,  without  realizing  that  the  business  of  the 
courts  of  law  in  the  provinces  must  have  been 
conducted  in  a  very  special  manner.  The  mere 
fact,  long  since  well  known,  that  the  governor 
went  on  regular  circuit  through  some  of  the  prin- 
cipal towns  of  his  province  would  be  sufficient  to 
dispose  of  the  idea  that  trials  could  be  conducted 
in  the  slow,  deliberate  and  complicated  manner 
in  which  they  were  conducted  in  Rome.  In  the 
time  of  the  Republic  the  governor  of  Sicily  made 
his  circuit  of  the  whole  of  his  province  during 
the  summer  months.1  Cicero,  while  governor  of 
Cilicia  in  50  B.  C.,  spent  about  seventy-five  days 
in  Laodicea  and  forty-five  days  in  Tarsus,  but 
he  was  more  active  in  administrative  matters  than 

i  Cic.  In  Verr.  5,  29. 


CRIMINAL  TRIALS  141 

in  the  hearing  of  suits  while  he  was  in  these  two 
cities.2 

The  function  of  the  governor  must  have  been 
simply  that  of  hearing  one  case  after  another  as 
they  were  presented  to  him  upon  his  arrival  in 
the  towns  where  he  was  to  hold  court.3  It  is  clear 
also  that  he  could  hear  many  cases  in  a  compara- 
tively short  time,  for  Tacitus  says  that  governors 
who  were  military  men  were  in  the  habit  of  de- 
ciding cases  in  an  off-hand  manner.4  The  words 
of  Tacitus  are  certainly  intended  to  convey  the 
impression  that  the  methods  adopted  by  gov- 
ernors were  original,  and  that  in  hearing  cases 
they  did  not  feel  themselves  bound  by  a  strict 
set  of  rules.  About  a  century  earlier,  Julius 
Caesar  states  that  he  went  down  into  Cisalpine 
Gaul  on  three  different  occasions  at  the  close  of 
his  campaigns  in  Further  Gaul.  This  took  place 
just  at  the  opening  of  winter,  and  he  says  twice 
that  he  remained  for  only  a  few  days,  hearing 
the  cases  that  had  arisen  since  he  had  last  been  in 
that  portion  of  his  province.5  If  Caesar  could 
complete  the  procedure  connected  with  even  one 
case  within  this  short  time  he  certainly  did  not 
attempt  to  follow  the  procedure  with  which  he 
was  familiar  in  the  city. 

2  Cic.  Ad  Att.  5,  21,  9;  6,  2,  4-5;  6,  4,  1. 

3  Cic.  Ad  Qu.  Fr.  1,  1. 
*Tac.  Agr.  9. 

BCaes.  B.  G.  I,  54;  VI,  44;  VIII,  46. 


142          THE  PROSECUTION  OF  JESUS 

The  papyri  dealing  with  civil  cases  in  Egypt 
are  very  numerous,  and  somewhat  full  of  details, 
but  those  giving  information  on  criminal  cases 
are  unfortunately  less  comprehensive,  and  there 
are  fewer  of  them.  But  they  are  sufficiently 
numerous  to  give  a  general  idea  of  the  manner 
in  which  the  Romans  administered  the  criminal 
law  in  the  province.  At  the  head  of  the  provin- 
cial government  of  Egypt  stood  the  prefect,  who 
was  appointed  directly  by  the  emperor.6  Egypt 
was  one  of  the  provinces  which  the  emperors 
always  kept  closely  under  their  personal  control, 
or,  as  Tacitus  says,  they  kept  it  "in  their  own 
house,"7  by  which  he  means  that  the  emperors 
maintained  an  immediate  supervision,  and  pre- 
vented the  Senate  from  exercising  any  influence 
whatever.  The  governor  of  Egypt  was  usually 
a  Roman  knight,  although  one  instance  is  known 
of  the  appointment  of  an  Alexandrian  Jew  to 
the  office.  The  title  of  the  governor  was  "Prefect 
of  Egypt,"  but  an  interesting  legal  situation  is 
revealed  in  the  Gallus-inscription,  where  the  gov- 
ernor is  called  "Prefect  of  Alexandria  and 
Egypt."  This  would  indicate  that  there  was  a 
difference  between  the  administration  of  Alex- 
andria and  that  of  the  remainder  of  the  province. 
The  idea  that  there  was  a  distinction  is  confirmed 

«  Oxy.  39,  6;  C.  I.  L.  Ill,  14147,  5;  C.  I.  G.  4923;  Euseb.  H.  E. 
VI,  9. 
iHiat.  I,  11. 


CRIMINAL  TRIALS  143 

by  a  papyrus  which  calls  the  governor  "Prefect 
of  both  places,"  and  by  a  phrase  in  another, 
where  a  person  is  said  to  reside  "in  Alexan- 
dria near  Egypt."8  A  third  contains  an  official 
proclamation  forbidding  Roman  residents  of 
Alexandria  from  entering  Egypt.9  Such  state- 
ments furnish  the  clue  to  the  explanation  of  the 
fact  that  Alexandria  is  often  called  "the  city," 
while  Egypt  is  spoken  of  as  "the  country."  It 
is  very  probable  that  the  nature  of  the  population 
of  Alexandria,  which  differed  materially  from 
that  of  the  other  parts  of  the  province,  will  ac- 
count for  the  differentiation.  Several  sections  of 
the  city  were  occupied  almost  exclusively  by 
Jews,  and  these  had  a  special  form  of  govern- 
ment. 

Early  in  the  imperial  period,  probably  during 
the  reign  of  Augustus,  the  province  of  Egypt 
was  divided  into  three  judicial  districts.  The 
prefect  visited  the  chief  city  of  each  district  an- 
nually, both  to  hold  court  and  to  inspect  the 
administrative  work  of  the  local  officers.10  Only 
the  prefect,  as  the  immediate  representative  of 
the  emperor,  was  empowered  to  maintain  super- 
vision over  the  work  of  the  local  officials.  To 
assist  the  prefect  in  his  difficult  task,  there  were 
other  officials  who  possessed  jurisdiction  to  some 

*Oxy.  39,  6;  35,  9. 
9  Oxy.  727,  11. 

Flaccus,  16. 


144          THE  PROSECUTION  OF  JESUS 

degree,  although  probably  only  under  delegation 
by  the  prefect.  The  most  important  of  these 
were  the  three  epistrategi,  one  of  whom  was 
placed  in  charge  of  each  judicial  district.  Their 
duties  were  both  administrative  and  judicial,  but, 
so  far  as  the  papyri  give  information,  they  do 
not  seem  to  have  had  independent  powers.  They 
received  their  appointment  from  the  emperor. 
The  earliest  of  these  who  is  known  bore  a  Greek 
name,  but  all  subsequent  appointees  were  Ro- 
mans and  knights.  There  is  still  some  doubt  as 
to  the  extent  of  their  judicial  functions  after  the 
time  of  Augustus,  but  the  fact  that  they  were 
directly  appointed  by  the  emperor,  and  that  they 
were  Roman  citizens  of  high  rank,  indicates  that 
the  imperial  government  felt  the  strongest  neces- 
sity for  keeping  criminal  jurisdiction  in  the  hands 
of  the  Romans  themselves. 

The  officials  next  below  these  in  rank  were  the 
strategi,  or  presidents  of  the  smaller  districts, 
called  nomoi,  into  which  the  country  was  di- 
vided.11 They  were  appointed  by  the  prefect, 
and  the  majority  of  those  whose  names  are 
known  were  Greek  or  Egyptian,  but  a  few  have 
Roman  gentile  names,  although  even  these  have 
no  Roman  cognomina.12  It  is  evident  that  these 
positions  were  filled  by  the  prefect  from  among 

n(7.  I.  O.  4957,  32  ff.;  Fay.  125   (of  2nd  cent.);  Fay.  117   (of 
A.  D.    108). 

12  Wilcken,  Hermes,  XXVII   (1892),  292. 


CRIMINAL  TRIALS  145 

the  inhabitants  of  the  district,  so  that  the  ap- 
pointee was  a  member  of  the  subject  race,  and 
not  a  Roman.  There  were  still  other  officials  in 
the  province,  some  of  whom  had  judicial  func- 
tions. Chief  among  these  was  the  one  called 
iuridicus  Alexandreae,  or  iuridicus  Aegypti.13 
He  was  appointed  by  the  emperor,  but  his  exact 
functions  are  not  very  clear. 

When  the  prefect  went  on  circuit  into  one  of 
the  three  divisions  of  the  province,  he  was  accom- 
panied by  the  epistrategus  of  that  division,  and 
by  the  iuridicus  and  other  officials  connected  with 
the  offices  in  Alexandria.  The  strategi  of  the 
nomoi  composing  the  division  were  also  in  at- 
tendance upon  the  governor  during  the  period 
of  holding  court  in  the  division.  The  large  num- 
ber of  cases  to  which  reference  is  made  in  the 
papyri  shows  that  those  handled  by  the  prefect 
at  the  time  of  each  visit  to  a  division  were  by  no 
means  few.  That  the  whole  legal  business  of 
the  province  could  be  transacted  so  expeditiously 
is  proof  of  a  most  systematic  administration. 
There  were  three  factors  which  contributed  to  a 
successful  disposition  of  the  numerous  suits  that 
arose.  In  the  first  place,  the  cases  were  all  pre- 
pared in  advance,  and  the  documents  were  ready 
for  the  inspection  of  the  prefect  upon  the  open- 
ing of  the  assize.  In  the  second  place,  many 


r.    ap.    Powell,  Amer.   Jour.   Arch.    1903,   p.   50,   n.   24; 
Strabo,  XVII,  1,  12. 


146          THE  PROSECUTION  OF  JESUS 

matters  of  minor  importance  were  left  to  the 
disposal  of  the  local  officials,  who  were  possessed 
of  police  powers.  Thirdly,  cases  were  delegated 
by  the  prefect  at  his  discretion  to  the  epistrate- 
gus,  to  the  iuridicus,  and  probably  to  others  of 
the  suite,  when  the  prefect  had  examined  the 
documents.  It  is  manifest  that  the  prefect  re- 
served for  his  own  attention  only  those  cases  that 
seemed  to  him  of  greatest  consequence,  or  had 
the  most  direct  bearing  upon  the  welfare  of  the 
Roman  administration  in  the  province. 

Two  points  are  here  worthy  of  special  consid- 
eration. Local  officers  of  the  subject  state  were 
entrusted  with  the  settlement  of  the  most  trivial 
cases  only.14  So  far  as  one  can  estimate  from  the 
papyri,  these  cases  were  confined  to  suits  involv- 
ing loans  and  contracts,  and  to  such  matters  of 
local  disorder  as  disturbances  of  the  peace  on  the 
streets  and  disregard  of  market  regulations,  to- 
gether with  similar  suits  of  purely  private  or  local 
concern.  But  all  cases  of  more  importance  than 
these  minor  ones  were  tried  and  settled  by 
officials  appointed  directly  by  the  emperor,  or 
by  his  immediate  representative  the  prefect.  The 
second  feature  of  significance  is  that  the  cases 
were  prepared  in  advance  by  the  local  officers, 
in  order  to  expedite  business  for  the  provincial 
authorities  when  they  appeared  in  the  division. 
Both  of  these  points  have  a  direct  bearing  upon 

i*a  7.  G.  5078;  B.  O.  U.  I,  168  (doubtful). 


CRIMINAL  TRIALS  147 

the  nature  of  the  accusation  and  prosecution  of 
Jesus. 

When  a  provincial  wished  to  institute  suit 
against  another  provincial,  he  addressed  the 
strategus  of  his  nomos,  or  county,  in  the  form  of 
a  libel,  in  which  he  specified  the  nature  of  the 
complaint  he  wished  to  lodge,  and  asked  that  his 
case  be  heard  at  the  next  assize.15  Many  of  these 
libels  are  extant,  but  the  majority  are  on  civil 
matters.  Upon  one  of  the  documents  appears 
the  statement  that  the  libel  had  been  forwarded, 
apparently  to  the  defendant  and  this  has  been 
taken  as  proof  that  the  sending  of  the  libel  con- 
stituted a  summons  to  the  defendant  to  be  pres- 
ent at  the  tribunal  of  the  prefect,  and  that  this 
was  the  only  form  of  summons  that  existed.  The 
function  of  the  strategus  would  then  be  merely 
that  of  registering  the  cases  to  be  presented  to 
the  governor.  But  if  it  is  permissible  to  draw 
any  conclusions  from  the  procedure  in  similar 
cases  in  Rome,  it  must  be  held  that  the  strategus 
would  investigate  the  case  to  the  extent  of  dis- 
covering whether  the  matter  involved  a  genuine 
infraction  of  the  law,  and  whether  the  available 
evidence  justified  a  submission  of  the  case  to  the 
prefect. 

There  is  a  second  kind  of  document  extant, 
addressed  by  the  plaintiff  to  the  prefect,  which 

^Amh.  81;  Tebt.  303;  434;  P.  B.  M.  358;  B.  G.  U.  I,  72;  226; 
II,  491,  II;  589;  663;  III,  757. 


148          THE  PROSECUTION  OF  JESUS 

seems  to  form  an  introduction  to  the  case.16  Its 
purpose  is  still  uncertain,  but  it  has  commonly 
been  thought  that  it  took  the  place  of  the  address 
to  the  strategus,  and  that  it  was  a  request  directly 
to  the  prefect  to  issue  a  summons  to  the  defendant 
to  appear  for  trial.  This,  however,  would  involve 
a  double  method  of  instituting  action  which 
would  be  out  of  harmony  with  the  remainder  of 
the  Roman  legal  system.  It  is  much  more  prob- 
able that  we  would  discover,  if  we  had  a  sufficient 
number  of  documents  existing,  that  it  was  a  noti- 
fication in  advance  to  the  prefect  that  the  case 
had  already  been  presented  to  the  strategus,  and 
was  intended  to  inform  the  prefect  of  the  nature 
of  the  matter  that  was  later  to  come  before  him 
for  his  decision.  The  prefect  could  then  consider 
the  law  applicable  to  the  situation,  and  could 
decide  whether  to  entrust  the  case  to  one  of 
his  subordinates.  Summonses  were  issued,  when 
necessary,  to  the  defendants.17 

The  papyri  do  not  indicate  how  the  case  was 
actually  conducted  when  it  came  before  the  pre- 
fect for  a  hearing.  We  know  only  that  some  of 
the  cases  were  decided  by  the  prefect,  and  that 
others  were  delegated.18  The  delegation  was  of 

MB.  Q.  U.  113;  114;  614;  P.  B.  M.  177;  354;  358;  Vat.  fr.  156; 
163. 

"B.  O.  U.  II,  614,  18-19;  Oxy.  237,  V,  37. 

is  Oxy.  486,  37;  B.  O.  U.  I,  5,  II,  17;  256,  33;  II,  582;  P.  B.  M. 
2,  p.  172. 


CRIMINAL  TRIALS  149 

two  kinds.  In  some  instances  the  representative 
of  the  prefect  was  given  the  duty  of  hearing  the 
case,  and  of  pronouncing  a  decision.19  In  others 
he  was  expected  merely  to  investigate  and  report 
back  for  the  consideration  and  judgment  of  the 
prefect.20  These  features  indicate  that  the  pre- 
fect felt  a  necessity  for  haste  in  despatching  the 
business  of  the  courts,  and  at  the  same  time  prove 
that  in  important  cases  the  Romans  were  deter- 
mined to  keep  the  jurisdiction  in  their  own  hands. 
The  parallelism  between  this  procedure  and 
that  of  the  prosecution  of  Jesus  is  very  close. 
The  local  officials,  in  this  case  the  high  priest  and 
the  Sanhedrin,  with  police  powers,  arrested  an 
alleged  breaker  of  the  law.  They  next  caused 
witnesses  to  appear  before  them  and  tell  their 
story,  in  order  that  the  Sanhedrin  might  ascer- 
tain how  substantial  was  the  evidence  against 
Jesus.  It  was  necessary  that  the  evidence  be  of 
some  significance  if  it  was  to  command  the  atten- 
tion of  the  governor.  When  the  governor  ap- 
peared in  Jerusalem  at  the  time  of  the  next  assize, 
which  was  also  the  time  of  the  passover,  the  local 
officials  presented  the  case  to  him  as  the  only 
person  qualified  to  hear  it  and  to  pronounce  sen- 
tence. The  situation  differs  in  one  respect  only. 
The  papyri  from  which  the  history  of  criminal 
cases  in  Egypt  becomes  known  show  that  ordi- 

19  Oxy.  237,  V,  7;  B.  O.  U.  Ill,  871,  10. 

20  Mitteis-Wilcken,  II,  n.  93. 


150          THE  PROSECUTION  OF  JESUS 

narily  the  plaintiff  stated  his  case  to  the  local 
strategus,  while  in  the  case  of  Jesus  it  was  the 
local  officials  who  themselves  arrested  the  alleged 
criminal  and  presented  the  case.  But  this  also 
was  provided  for  in  the  administration  of  Egypt, 
so  that  the  governor  or  one  of  the  local  officials 
could  issue  a  warrant  or  a  summons  to  one  who 
was  accused  of  having  violated  the  criminal  code 
of  the  province. 

The  legal  status  and  the  functions  of  the  San- 
hedrin,  therefore,  corresponded  exactly  to  those 
of  the  strategus  of  a  nomos  in  Egypt.  The 
strategus  was  appointed  by  the  prefect  from  the 
native  race ;  the  Sanhedrin,  a  body  already  exist- 
ing, was  sanctioned  by  the  Empire,  but  was 
given  new  and  more  limited  functions.  The 
Romans  found  an  ancient  system  of  local  tri- 
bunals in  Judea,  and  allowed  them  to  maintain 
a  partial  activity,  but  reduced  their  power  in 
criminal  cases  to  that  of  preparing  the  documents 
and  sifting  the  evidence,  so  that  the  suits  might 
be  handled  more  expeditiously  by  the  governor 
when  he  appeared  in  Jerusalem.  Why  the 
Romans  permitted  the  ancient  system  of  courts 
to  remain  must  be  only  a  matter  of  conjecture. 
But  it  may  be  that  the  Jewish  courts  still,  as  is 
commonly  believed,  treated  ecclesiastical  cases  of 
smaller  consequence,  for  the  reason  that  the 
Romans  decided  that  it  would  be  least  irritating 
and  disturbing  to  racial  feelings  to  allow  the 


CRIMINAL  TRIALS  151 

native  courts  to  continue  with  a  part  of  their 
former  functions.  The  Jews  would  thus  be  more 
patient  under  foreign  sway.  The  total  loss  of 
the  native  courts  would  be  felt  more  severely  by 
the  Jews  than  by  the  majority  of  the  subject 
nations,  because  the  national  courts  enforced  the 
observance  of  the  precepts  of  the  ecclesiastical 
code,  and  punished  infringements  of  its  pro- 
visions. Consequently  the  nation  would  lose  both 
its  political  freedom  and  its  religious  unity,  if 
the  native  courts  were  entirely  abolished.  This 
assumption  of  a  loss  of  power  involves  no  contra- 
diction to  the  elaborate  scheme  of  criminal  pro- 
cedure described  in  the  Talmud.  The  Mishna 
was  not  put  into  its  present  form  until  at  least 
two  centuries  after  the  beginning  of  the  Chris- 
tian era,  and  its  treatment  is  purely  historical. 
The  old  phraseology,  with  its  use  of  the  present 
tense,  was  preserved,  but  the  composition  of  the 
Talmud  as  we  now  have  it  took  place  long  after 
the  disappearance  of  the  courts  it  describes.  This 
is  particularly  noticeable  in  the  case  of  the  Baby- 
lonian Talmud,  which  was  not  written  for  several 
centuries  after  the  Jews  of  Babylon  had  lost  all 
immediate  or  personal  knowledge  of  the  courts 
and  their  procedure. 

The  common  belief  that  the  Sanhedrin  had  the 
right  to  try  criminal  cases,  although  it  did  not 
have  the  power  to  execute  its  own  sentences,  is 
based  upon  two  arguments.  The  first  of  these 


152          THE  PROSECUTION  OF  JESUS 

is  the  theory  that  the  Romans  were  more  lenient 
in  their  treatment  of  the  Jews  than  they  were 
in  their  treatment  of  other  subject  nations.  The 
nature  and  extent  of  this  leniency  has  already 
been  shown,  and  it  has  been  made  evident  that 
the  difference  was  not  of  such  significance  that 
one  could  argue  that  the  Jews  had  received 
special  favors.  For  this  reason  it  is  impossible 
to  maintain  that  the  Romans  would  display  an 
inclination  to  break  their  established  custom  in 
the  provinces  by  granting  to  the  Jews  the  right 
to  try  serious  criminal  cases  arising  in  their  own 
nation.  The  second  argument  depends  upon  the 
existing  evidence  that  the  Jews  did  actually  have 
courts,  and  that  these  tried  criminal  cases  of  great 
importance.  In  fact  it  is  claimed  that  the  Sanhe- 
drin  heard  criminal  cases  involving  the  death 
penalty,  even  later  than  the  time  of  the  trial  of 
Jesus. 

The  Roman  province  ruled  by  the  procurator 
of  Judea  contained  all  that  section  of  Palestine 
which  the  Jews  divided  into  the  two  parts,  Judea 
and  Samaria.  Josephus  describes  both  of  these 
districts  at  some  length,  and  in  his  description 
of  Judea,  the  more  southern  of  the  two,  he  says : 
"It  is  divided  into  eleven  sections,  over  which,  as 
the  royal  city,  Jerusalem  rules,  presiding  over  all 
the  neighboring  country  as  the  head  does  over 
the  body.  As  to  the  remaining  cities  after  it, 
they  are  distributed  among  the  toparchies."21 

21  Bell  III,  54. 


CRIMINAL  TRIALS  153 

Then  he  mentions  the  various  cities  in  the  eleven 
toparchies,  and  it  is  clear  from  their  location  that 
the  eleven  included  all  of  Judea  except  the  strip 
along  the  coast  northward  from  the  southern 
boundary  of  Samaria.  One  who  is  familiar  with 
the  Roman  system  of  dividing  provinces  into 
judicial  districts  would  immediately  assume  that 
these  eleven  toparchies  formed  one  district,  to  be 
compared  with  one  of  the  three  districts  into 
which  Egypt  was  divided.  A  toparchy  would 
then  correspond  to  one  of  the  smaller  sections, 
called  nomoi,  in  Egypt.  One  would  naturally 
conclude  that  the  northern  half  of  the  province, 
containing  Samaria  and  the  coast  district  of 
Judea  as  far  as  Ptolemais,  comprised  a  second 
judicial  district.  And  this  is  confirmed  by  the 
fact  that  our  sources,  whether  Greek,  Latin,  or 
Hebrew,  mention  the  holding  of  court  by  the 
governor  only  in  two  cities,  Jerusalem  and 
Caesarea.  One  case  is  said  to  have  been  heard 
at  Lydda,  but  this  is  universally  rejected  as  in- 
accurate. Since  the  large  province  of  Egypt 
contained  but  three  judicial  districts,  it  is  very 
unlikely  that  Judea,  one  of  the  smallest  of  the 
Roman  provinces,  would  be  divided  into  more 
than  two  districts. 

Prior  to  the  reduction  of  Judea  to  the  form 
of  a  Roman  province,  criminal  law  was  adminis- 
tered by  the  Great  Sanhedrin  at  Jerusalem  and 
by  a  number  of  lesser  courts  scattered  among  the 


154          THE  PROSECUTION  OF  JESUS 

various  towns.  The  Great  Sanhedrin  acted  as 
a  court  of  appeals,  and  had  also  the  function  of 
a  trial  court  in  certain  cases  specified  in  the  Tal- 
mud. These  are  mentioned  in  the  following 
language:  "The  judgment  of  the  seventy-one  is 
besought  when  the  affair  concerns  a  whole  tribe, 
or  is  regarding  a  false  prophet  or  the  high  priest ; 
when  it  is  a  question  whether  war  shall  be  de- 
clared or  not;  when  it  has  for  its  object  the  en- 
largement of  Jerusalem  or  its  suburbs;  whether 
tribunals  of  twenty-three  shall  be  instituted  in 
the  districts,  or  to  declare  that  a  town  has  become 
defiled,  and  to  place  it  under  ban  of  excommuni- 
cation."22 From  this  statement  it  is  evident  that 
the  country  falling  under  the  jurisdiction  of  the 
Great  Sanhedrin  was  divided  into  districts,  each 
with  its  local  court  of  twenty-three.  In  addition 
to  this,  the  Talmud  speaks  of  still  smaller  courts, 
composed  of  three  judges  each,  and  Josephus 
says  that  seven  judges  were  chosen  in  each  of 
the  towns. 

Whether  any  of  these  courts  survived  after  the 
deposition  of  Archelaus,  in  A.  D.  6,  and  the  be- 
ginning of  the  rule  of  the  procurators,  has  been 
debated.  The  evidence  for  the  continued  exist- 
ence of  the  local  courts  is  very  slight.  Apart 
from  the  New  Testament  there  is  none  whatever. 
In  the  Sermon  on  the  Mount  Jesus  says :  "Who- 
soever shall  say  to  his  brother,  Raca,  shall  be  in 

22  Mishna,  Sanh.  1,  1. 


CRIMINAL  TRIALS  155 

danger  of  the  council."23  That  is  an  offense  which 
would  come  before  the  local  court,  but  the  sermon 
was  delivered  in  Galilee,  which  was  still  governed 
by  client  princes  of  the  house  of  Herod,  and  con- 
ditions there  cannot  be  taken  as  an  indication  of 
conditions  in  Judea.  A  little  later  Jesus  sent 
out  his  disciples  on  their  first  missionary  journey, 
giving  them  the  direction :  "Go  not  into  any  way 
of  the  Gentiles,  and  enter  not  into  any  city  of  the 
Samaritans ;  but  go  rather  to  the  lost  sheep  of  the 
house  of  Israel."  Then  he  tells  them  of  the  dan- 
gers they  are  likely  to  encounter:  "But  beware 
of  men:  for  they  will  deliver  you  up  to  councils, 
and  in  their  synagogues  they  will  scourge  you."24 
Matthew  places  this  episode  in  Galilee,  but  if  the 
disciples  were  to  go  into  Judea,  the  conclusion 
would  be  that  courts  existed  there.  Mark  repre- 
sents the  statement  as  being  made  on  the  Mount 
of  Olives,  during  the  week  following  the  tri- 
umphal entry  into  Jerusalem.25  That  would  be 
still  better  evidence  that  local  courts  survived  in 
Judea.  If  they  did  actually  exist,  their  function 
must  have  been  that  of  hearing  trifling  cases  of 
disorder  in  the  towns,  for  no  mention  is  made  of 
any  criminal  case  coming  before  them.  It  is  by 
no  means  improbable  that  these  district  courts 
were  survivals  of  the  older  Jewish  courts  of 

23  Mt.  V,  22. 

24  Mt  X,  5 ;   17. 

25  Mk.  XIII,  9. 


156          THE  PROSECUTION  OF  JESUS 

twenty-three,  one  in  each  toparchy.  The  specifi- 
cation of  the  synagogues  as  the  place  where  the 
disciples  would  suffer  punishment  supports  this 
view.  In  that  case  the  lesser  courts  would  be 
employed  by  the  Romans  in  performing  the 
duties  performed  by  local  courts  in  other  prov- 
inces of  the  Empire,  but  perhaps  with  special 
powers  in  ecclesiastical  cases  added.  The  thing 
which  Jesus  predicted  on  this  occasion  was  no 
doubt  disturbance  or  rioting  in  the  streets,  for 
which  the  itinerant  missionaries  would  be  held 
responsible. 

It  has  sometimes  been  maintained  that  even 
the  Great  Sanhedrin  was  not  in  existence  at  the 
time  of  the  crucifixion  of  Jesus,  but  that  it  had 
been  abolished  by  Herod  the  Great.  The  chief 
basis  for  this  belief  is  the  statement  made  by 
Josephus,  that  Herod  put  to  death  forty-five 
leaders  of  the  Jews  who  had  opposed  his  author- 
ity in  favor  of  that  of  Antigonus.26  It  is  held 
that  the  Sadducees  were  the  supporters  of  Anti- 
gonus, and  that  it  was  the  Sadducees  who  were 
in  control  of  the  Sanhedrin.  So  the  two  things 
are  linked  together,  and  the  conclusion  is  drawn 
that  the  Sanhedrin  itself  ceased  to  exist.  But  the 
facts  by  no  means  warrant  such  a  conclusion.  It 
cannot  be  doubted  that  some  of  the  forty-five 
slain  by  Herod  were  members  of  the  Sanhedrin, 
but  it  is  quite  improbable  that  even  the  majority 

26  Bell.  I,  358;  Ant.  XV,  6. 


CRIMINAL  TRIALS  157 

of  them  were.  Granting  that  they  were  all  mem- 
bers, there  would  still  be  twenty-six  remaining, 
which  was  a  sufficient  number  to  constitute  a 
quorum  under  the  Jewish  law.  These  twenty-six 
would  also  form  the  nucleus  of  a  new  council 
which  would  be  eminently  desirable  in  the  eyes 
of  Herod,  for  they  would  be  his  supporters.  But 
the  best  proof  that  the  Sanhedrin  continued  to 
exist  is  that  a  council  in  Jerusalem  both  delib- 
erated and  acted  during  all  the  years  intervening 
between  the  supposed  extirpation  by  Herod  and 
the  fall  of  Jerusalem.  This  council  is  called 
"Sanhedrin"  in  the  texts  of  the  Gospels  and  in 
Josephus.  One  cannot  accuse  these  contempo- 
rary writers  of  such  a  curious  misuse  of  the  word 
as  to  apply  a  well  known  national  term  to  some- 
thing quite  different. 

Assuming  that  the  Sanhedrin  existed  down  to 
the  fall  of  Jerusalem,  the  next  and  more  difficult 
question  is  the  determination  of  the  nature  and 
extent  of  its  powers.  Those  who  maintain  that 
the  court  possessed  jurisdiction  during  the  whole 
period  support  their  claim  by  reference  to  definite 
instances  of  the  exercise  of  this  power  until  the 
fall  of  the  city.  If  a  native  court  in  any  Roman 
province  had  criminal  jurisdiction,  it  would  be 
expected  to  enforce  the  law  contained  in  the  pro- 
visions of  the  bill  enacted  by  the  Roman  Senate 
when  it  created  the  province.  The  private  law 
to  be  enforced  was,  in  general,  the  native  law, 


158          THE  PROSECUTION  OF  JESUS 

but  the  criminal  law  of  the  natives  was  greatly 
modified  in  accordance  with  certain  fixed  prin- 
ciples adopted  by  the  Roman  government.  The 
modifications  extended  both  to  the  definitions  of 
the  crimes,  and  to  the  penalties  prescribed.  It 
has  already  been  shown  that  the  Jews  were  al- 
lowed to  retain  their  own  ecclesiastical  laws  and 
customs  after  they  became  subject  to  Rome.  It 
is  obvious,  therefore,  that  if  their  courts  had  juris- 
diction, they  would  be  expected  to  enforce  the 
Mosaic  code,  with  such  modifications  and  addi- 
tions as  the  Romans  may  have  made.  Those  who 
endeavor  to  prove  that  the  Sanhedrin  had  juris- 
diction point  to  instances  of  the  enforcement  of 
the  Mosaic  code. 

The  first  evidence  adduced  is  the  statement 
made  in  the  Talmud  concerning  the  loss  of  the 
power  to  inflict  capital  punishment.  This  loss 
occurred  forty  years  before  the  destruction  of 
Jerusalem,  according  to  two  passages  in  the 
Talmud.  "Forty  years  before,  the  Sanhedrin 
were  exiled  from  their  place,  and  settled  in 
shops."27  "Forty  years  before  the  temple  was 
destroyed,  the  Sanhedrin  was  exiled  from  the 
chamber  of  the  Temple  to  a  shop.  And  R.  Itzhak 
ben  Abudimi  explained  that  it  means  that  from 
that  time  the  Sanhedrin  did  not  try  cases  of  cap- 
ital punishment."28  Some  writers  argue  that  the 

27  Qemara,  Aboda  Zara,  1,  3. 

28  Gemara,  Sank.  5,  1. 


CRIMINAL  TRIALS  159 

Sanhedrin  still  had  power  to  try  only  cases  of 
lesser  consequence,  but  the  majority  hold  that  the 
court  had  the  right  to  conduct  capital  cases  up 
to  the  point  of  pronouncing  sentence,  but  that 
their  power  ceased  at  this  point.  So,  it  is  claimed, 
the  Sanhedrin  had  the  right  to  try  Jesus,  but 
that  they  had  reached  the  limit  of  their  power 
when  they  declared  him  guilty.  They  were  then 
obliged  to  refer  the  case  to  Pilate  for  his  ap- 
proval of  their  decision.  But  this  is  a  very  un- 
natural deduction  from  the  statement  of  the 
Talmud.  The  question  then  being  discussed  in 
the  section  of  the  Talmud  from  which  the  passage 
is  taken  was  the  location  of  the  room  in  which 
trials  took  place.  It  was  said  that  the  Sanhedrin 
formerly  met  in  the  Hall  of  Hewn  Stones,  but 
that  more  recently  the  court  did  not  meet  there, 
because  the  Jews  no  longer  had  the  power  to  pass 
capital  sentences.  Clearly  the  writer  was  refer- 
ring to  but  one  point,  and  did  not  mention  other 
examples  of  the  loss  of  power,  since  nothing  else 
concerned  him  at  the  moment.  It  is  a  fair  as- 
sumption that  he  would  have  spoken  of  other 
similar  deprivations,  if  he  had  then  been  inter- 
ested in  the  whole  subject  of  the  history  of  the 
powers  of  the  Sanhedrin.  In  other  words,  one 
cannot  conclude  that  the  Jewish  courts  still  pos- 
sessed criminal  jurisdiction  merely  because  a 
writer  in  the  Talmud  does  not  state  that  such 
jurisdiction  had  been  lost,  and  that,  too,  in  a  pas- 


160          THE  PROSECUTION  OF  JESUS 

sage  where  it  would  be  inappropriate  to  mention 
the  matter. 

The  fullest  and  best  reasoned  argument  on  the 
subject  of  the  jurisdiction  of  the  Sanhedrin  under 
Roman  supremacy  is  that  of  Juster.  He  denies 
that  the  Jewish  court  had  lost  its  criminal  juris- 
diction, and  refuses  to  accept  the  statement  of 
the  Talmud  as  proof  that  the  loss  had  occurred. 
He  argues  that  the  period  of  forty  years  men- 
tioned in  the  Talmud  must  not  be  interpreted 
literally.  He  also  advances  the  interesting  theory 
that,  since  forty  years  earlier  than  the  fall  of 
Jerusalem  brings  the  date  of  the  loss  into  the 
procuratorship  of  Pilate,  this  very  coincidence 
is  sufficient  evidence  that  the  insertion  of  the 
number  forty  was  due  to  a  pious  Jew,  who  wished 
to  disprove  the  charge  that  the  Jews  had  any 
connection  with  the  crucifixion  of  Jesus.  Juster 
thinks  that  even  the  removal  from  the  Hall  of 
Hewn  Stones  is  not  proved  by  the  words  in  the 
Talmud,  for  the  Mishna  assumes  that  the  Sanhe- 
drin continued  to  meet  in  that  Hall  until  the 
destruction  of  the  temple.  Those  who  maintain 
that  the  number  forty  is  used  accurately  are 
forced  to  hold,  according  to  Juster,  that  juris- 
diction was  surrendered  voluntarily,  for  nothing 
arose  about  the  year  A.  D.  30,  which  could  have 
effected  a  change  of  policy  on  the  part  of  the 
Romans.  If  a  change  was  made  at  all,  it  must 
have  occurred  at  the  deposition  of  Archelaus,  and 


CRIMINAL  TRIALS  161 

not  during  the  procuratorship  of  Pilate.  The 
simple  fact  is,  says  Juster,  that  the  Jews  did  not 
wish  to  exercise  the  right  which  they  possessed, 
and  that  the  Talmud  contradicts  itself,  for  im- 
mediately after  stating  that  the  Sanhedrin  had 
lost  jurisdiction,  it  gives  a  detailed  account  of  a 
capital  case  which  was  tried  by  it  only  a  short 
time  before  the  destruction  of  the  temple. 

The  initial  argument  advanced  by  Juster  ap- 
pears quite  reasonable,  for  the  numeral  forty 
need  not  be  interpreted  to  mean  that  number 
exactly.  But  when  he  undertakes  to  contradict 
the  writer  of  that  passage,  who  asserted  that  the 
removal  from  the  Hall  of  Hewn  Stones  was 
coincident  with  a  loss  of  jurisdiction,  he  is 
struggling  with  the  problem  of  proving  more 
than  is  necessary.  It  is  much  simpler  to  believe 
that  the  writer  made  a  mistake  merely  in  the 
length  of  time  prior  to  the  fall  of  Jerusalem  that 
this  loss  of  power  took  place.  The  most  natural 
assumption  is  that  the  change  occurred  with  the 
beginning  of  the  period  of  the  procurators,  and 
it  would  require  a  great  amount  of  proof  to  con- 
vince one  versed  in  the  Roman  system  of  pro- 
vincial administration  that  the  writer  in  the 
Talmud  is  mistaken  in  any  respect  whatever 
except  in  the  date  to  which  he  assigns  the  change. 
During  the  period  between  the  deposition  of 
Archelaus  and  the  fall  of  Jerusalem  only  one 
constitutional  change  of  consequence  is  men- 


162          THE  PROSECUTION  OF  JESUS 

tioned  in  our  sources.  In  the  year  A.  D.  41  the 
rule  of  the  procurators  was  temporarily  abol- 
ished, and  Agrippa  I  was  restored  by  Claudius 
to  the  kingdom  of  the  Herods.  Such  alterations 
in  the  constitution  as  may  have  been  effected  at 
that  time  would  be  in  the  way  of  granting  more 
extensive  powers  to  a  client  prince  and  to  the 
people  of  his  kingdom.  The  jurisdiction  of  the 
Jewish  courts  could  not  then  have  been  dimin- 
ished. The  year  of  the  fall  of  Archelaus  is  the 
only  time  at  which  the  loss  can  be  reasonably 
explained,  and  the  Talmud  should  have  given  the 
year  sixty  instead  of  forty.  But,  if  this  is  the 
real  state  of  affairs,  another  passage  in  the  tract 
on  the  Sanhedrin  in  the  Talmud  must  be  incor- 
rect. It  is  there  said  that  the  Sanhedrin  could 
pass  a  legal  capital  sentence  only  in  the  Hall  of 
Hewn  Stones,  and  that  the  court  had  removed 
voluntarily  from  this  Hall,  in  order  to  avoid 
pronouncing  such  sentences.  Evidently  a  state- 
ment of  this  kind  is  more  likely  to  be  erroneous 
than  the  other,  for  the  reason  that  the  loss  of 
jurisdiction  must  have  hurt  the  pride  of  the  Jew- 
ish nation,  and  an  attempt  to  explain  the  loss 
would  be  a  natural  aim  of  any  Jewish  patriot. 

Several  passages  of  Josephus  have  been  used 
in  the  effort  to  prove  that  the  Sanhedrin  retained 
jurisdiction,  but  only  four  of  them  can  possibly 
refer  to  the  time  subsequent  to  the  establishment 
of  the  procuratorship.  One  of  these  four  com- 


CRIMINAL  TRIALS  163 

ments  on  the  conduct  of  the  Sadducees  when  they 
held  "magistracies,"  but  it  is  so  general  that  it 
may  well  mean  any  one  of  the  petty  offices  which 
the  Romans  would  entrust  to  the  subject  na- 
tion.29 A  second  tells  of  the  attitude  of  the 
Essenes  toward  condemnation.  Josephus  says 
that  they  do  not  pass  sentences  in  a  court  of  less 
than  one  hundred  men.30  Since  no  Jewish  court 
was  composed  of  that  number  of  judges,  Jo- 
sephus must  mean  that  Essenes  sat  in  judg- 
ment upon  the  ecclesiastical  offenses  of  other 
Essenes,  or  endeavored  in  this  way  to  settle  pri- 
vate quarrels.  Certainly  he  is  not  thinking  of  a 
civil  or  criminal  trial.  The  third  passage  tells 
of  a  man  who  fled  to  Rome  to  avoid  punishment 
for  an  offense  against  the  law.31  An  accusation 
had  been  made  against  him,  but  he  had  not 
awaited  trial.  There  is  no  reason  for  assuming 
that  this  trial  would  have  been  held  in  a  Jewish 
court  rather  than  in  a  Roman  court.  The  fourth 
instance  is  that  of  the  stoning  of  James,  the 
brother  of  Jesus.  Agrippa  had  appointed  Annas 
to  be  high  priest,  in  the  interval  between  the 
death  of  Festus  and  the  arrival  of  his  successor 
Albinus.  Annas  called  the  Sanhedrin  together, 
and  had  James  and  certain  others  condemned  to 
death.  Complaint  was  made  to  Albinus,  who 

29  Ant.  XVIII,  17. 
so  Bell.  II,  145. 
si  Ant.  XVIII,  81. 


164          THE  PROSECUTION  OF  JESUS 

was  .informed  by  the  Jewish  complainants  that 
the  high  priest  had  not  the  right  even  to  assemble 
the  Sanhedrin  without  the  sanction  of  the  gov- 
ernor.32 Annas  was  thereupon  removed  from 
office.  This  does  not  make  it  clear  that  the  pass- 
ing of  sentence  was  forbidden,  when  the  Sanhe- 
drin was  permitted  to  assemble.  The  evidence, 
however,  derivable  from  these  four  passages  that 
the  Sanhedrin  possessed  criminal  jurisdiction  is 
of  the  very  slightest  value. 

Four  cases  are  cited  from  the  New  Testament, 
in  which  some  scholars  think  there  are  proofs  that 
the  Sanhedrin  still  had  jurisdiction.  The  first 
case  is  that  of  Stephen,  who  attracted  attention 
by  his  preaching  shortly  after  the  day  of  Pente- 
cost. Owing  to  his  remarkable  statements  he  was 
seized  by  certain  persons  and  taken  before  the 
Sanhedrin.33  It  is  interesting  to  notice  that  this 
arrest  was  effected  by  private  citizens,  and  was 
therefore  by  no  means  parallel  to  the  arrest  of 
Jesus.  The  charge  against  Stephen  is  given  in 
these  words:  "This  man  ceaseth  not  to  speak 
words  against  this  holy  place,  and  the  law:  for 
we  have  heard  him  say,  that  this  Jesus  of  Naza- 
reth shall  destroy  this  place,  and  shall  change 
the  customs  which  Moses  delivered  unto  us." 
This,  it  is  to  be  noted,  is  purely  an  ecclesiastical 
charge,  and  is  criminal  only  in  so  far  as  the 

82  Ant.  XX,  202. 
z&Acts,  VI,  12. 


CRIMINAL  TRIALS  165 

ecclesiastical  law  of  the  Jews  became  incorpo- 
rated in  their  civil  code.  When  the  evidence  had 
been  given  against  Stephen,  the  high  priest  called 
upon  him  to  make  his  defense.  The  defense  of 
Stephen  so  aroused  his  hearers  that  they  did  not 
wait  for  a  formal  pronouncing  of  sentence,  but 
rushed  upon  him  and  stoned  him  to  death.34  This 
is  the  story  of  the  case  as  it  is  understood  by  the 
critics  of  the  present  day,  and  it  is  thoroughly 
in  harmony  with  the  text  of  the  original.  But 
those  who  use  the  case  as  evidence  that  the  Sanhe- 
drin  retained  criminal  jurisdiction  maintain  that 
the  execution  of  Stephen  conformed  to  the  in- 
junction of  the  Mosaic  code  as  to  the  penalty  to 
be  inflicted  upon  those  found  guilty  of  blasphemy : 
"The  hand  of  the  witnesses  shall  be  first  upon 
him  to  put  him  to  death,  and  afterward  the  hand 
of  all  the  people."35  The  account  given  by  the 
writer  of  the  Acts  does  not  harmonize  with  this 
to  the  least  degree,  and  in  numerous  other  ways 
the  procedure  in  the  case  of  Stephen  contradicted 
the  rules  laid  down  in  the  Talmud,  in  much  the 
same  manner  as  did  the  procedure  in  the  case  of 
Jesus.  For  this  reason  the  case  of  Stephen  can- 
not be  regarded  as  affording  proof  that  the 
Sanhedrin  retained  jurisdiction.  Otherwise  one 
must  admit  that  Jewish  procedure  was  not  pos- 

a*Acts,  VII,  57-60. 
t.  XVII,  7. 


166          THE  PROSECUTION  OF  JESUS 

sessed   of  the   strictness,   solemnity   and   equity 
which  the  Talmud  says  it  did  possess. 

About  the  same  time  occurred  the  arrest  and 
the  proceedings  against  Peter  and  John,  or 
rather  two  arrests  and  two  hearings.  The  first 
was  immediately  after  the  healing  of  the  man 
who  had  been  lame  from  birth.  The  two  apostles 
were  arrested  by  the  captain  of  the  temple  guard, 
and  the  context  shows  that  the  arrest  was  made 
under  direction  of  the  Sanhedrin.36  Since  the 
arrest  took  place  in  the  evening,  the  men  were 
kept  under  lock  until  the  following  morning,  in 
which  respect  the  procedure  differs  from  that 
against  Jesus,  as  reported  in  the  Gospels.  In 
the  morning  they  were  brought  before  the  Sanhe- 
drin, and  were  at  once  asked  for  their  authority 
to  preach  and  to  perform  their  acts  of  healing. 
When  they  had  answered  that  they  did  these 
things  in  the  name  of  Jesus  Christ  of  Nazareth, 
they  were  commanded  to  leave  the  council  cham- 
ber while  the  court  deliberated.  The  decision 
was  reached  that  the  men  should  be  allowed  to 
go  free,  on  condition  that  they  should  henceforth 
abstain  from  preaching.  The  only  part  of  this 
whole  procedure  that  can  be  regarded  as  evidence 
of  the  possession  of  jurisdiction  is  the  fact  of  the 
arrest.  That  was  conducted  in  due  and  regular 
fashion.  The  remainder  cannot  be  construed  as 
anything  but  a  public  or  official  hearing,  insti- 

se  Acts,  IV,  3. 


CRIMINAL  TRIALS  167 

tuted  for  the  purpose  of  ascertaining  whether 
there  was  a  charge  upon  which  the  two  men  might 
be  held  for  trial:  "And  they,  when  they  had 
further  threatened  them,  let  them  go,  finding 
nothing  how  they  might  punish  them,  because  of 
the  people."37  The  phrase  "how  they  might 
punish  them"  is  possibly  a  very  slight  indication 
that  the  Sanhedrin  would  have  conducted  the 
case,  if  the  matter  had  come  to  trial.  But  it  is 
not  enough  to  constitute  proof,  for  the  same 
statement  was  made  concerning  Jesus,  and  yet 
they  made  no  effort  to  punish  him.  Nor  is  there 
here  the  smallest  hint  of  what  the  charge  would 
be  if  there  were  a  trial.  One  might  assume  that 
the  charge  would  have  been  one  of  blasphemy  or 
deception,  but  the  whole  matter  is  so  indefinite 
that  one  cannot  be  sure  whether  it  would  be  a 
criminal  charge,  even  in  the  Jewish  sense. 

A  second  time  Peter  and  other  apostles  were 
arrested,  on  the  ground  that  they  had  disobeyed 
the  injunction  of  the  Sanhedrin  that  they  should 
cease  from  preaching.  They  were  arrested  under 
order  of  the  Sanhedrin,38  and  were  locked  up  as 
before,  but  "an  angel  of  the  Lord  by  night  opened 
the  prison  doors,  and  brought  them  out."  On  the 
following  morning,  when  the  Sanhedrin  assem- 
bled, they  were  informed  that  the  apostles  were 
preaching  in  the  temple,  so  the  captain  of  the 

37  Acts,  IV,  21. 
,  17-18. 


168          THE  PROSECUTION  OF  JESUS 

temple  guard  went  with  his  officers  and  formally 
put  them  under  arrest.39  As  soon  as  the  apostles 
were  brought  into  the  council  chamber  the  high 
priest  addressed  them:  "We  strictly  charged  you 
not  to  teach  in  this  name:  and  behold,  ye  have 
filled  Jerusalem  with  your  teaching,  and  intend 
to  bring  this  man's  blood  upon  us."  The  reply 
of  the  apostles  angered  the  Sanhedrin,  but  they 
were  so  well  defended  by  Gamaliel  that  the  court 
concluded  that  it  was  best  to  release  the  prisoners. 
This  proceeding,  like  the  first,  can  be  explained 
only  as  a  preliminary  investigation,  at  which  the 
Sanhedrin  found  that  they  had  not  sufficient  evi- 
dence to  proceed  formally  against  the  prisoners, 
or  were  persuaded  not  to  use  the  evidence  which 
they  had.  The  decision  to  release  the  prisoners 
is  probably  a  decision  not  to  prosecute  them  in 
the  Roman  court. 

The  proceedings  against  Paul  would  not  here 
be  mentioned  were  it  not  for  the  fact  that  some 
writers  regard  them  as  affording  evidence  of  the 
competence  of  the  Sanhedrin  in  criminal  mat- 
ters. The  essential  lack  of  resemblance  between 
the  case  of  Paul  and  that  of  the  other  apostles 
depends  upon  the  difference  between  the  legal 
position  of  Paul  and  that  of  the  others.  Paul  was 
a  Roman  citizen,  while  they  were  not.  Conse- 
quently it  would  be  utterly  contrary  to  Roman 
usage  that  Paul  should  be  tried  by  any  Jewish 

**Acts,  V,  36. 


CRIMINAL  TRIALS  169 

court,  for  Roman  citizens  were  never  subject  in 
any  portion  of  the  Empire  to  a  court  other  than 
a  Roman  court.  And  in  fact  a  close  examination 
of  the  whole  history  of  the  case  against  Paul 
shows  that  he  was  not  for  one  moment  in  the 
control  of  the  Jewish  authorities. 

A  riot,  of  which  Paul  was  the  center,  arose  in 
the  streets  of  Jerusalem,  and,  as  soon  as  this  was 
reported  at  the  Antonia,  the  military  tribune  with 
a  band  of  soldiers  came  down  and  placed  Paul 
under  arrest.  Paul  was  immediately  taken  to  the 
castle,  there  to  await  examination.40  On  the  fol- 
lowing morning  the  tribune  summoned  the  San- 
hedrin  to  a  meeting,  and  led  Paul  before  them, 
that  he  might  explain  his  actions  in  Jerusalem, 
and  prove  that  he  was  not  responsible  for  the 
rioting  in  the  streets  on  the  preceding  day.41  The 
cause  of  the  riot,  and  the  occasion  for  the  subse- 
quent hearing,  appear  in  the  words  which  certain 
Jews  of  Asia,  then  in  Jerusalem,  used  in  order 
to  stir  up  the  people  against  Paul:  "This  is  the 
man  that  teacheth  all  men  everywhere  against 
the  people,  and  the  law,  and  this  place  ;  and  more- 
over he  brought  Greeks  also  into  the  temple,  and 
hath  defiled  this  holy  place."42  No  doubt  these 
Jews  recognized  Paul  as  the  man  whom  they  had 
recently  seen  while  he  was  on  his  missionary  jour- 


s,  XXI,  31-34. 
**Act8,  XXII,  30. 
42  Acts,  XXI,  28. 


170          THE  PROSECUTION  OF  JESUS 

ney  in  Asia  Minor.  Their  words  show  plainly 
that  they  regarded  him  as  heterodox  and  sacri- 
legious. There  is  no  indefiniteness  about  the 
situation,  although  Juster  contends  that  in- 
definiteness is  the  great  characteristic  of  the  book 
of  Acts,  both  here  and  elsewhere.  The  charge 
that  he  had  defiled  the  temple  by  introducing 
Greeks  into  it  illustrates  concretely  the  per- 
mission given  to  the  Sanhedrin  by  the  Romans 
to  punish  foreigners  who  entered  the  temple.43 
But  there  is  no  ground  for  the  conjecture  of 
Juster  that  the  uproar  in  the  streets  was  caused 
by  the  fact  that  Paul,  a  Roman  citizen,  had  en- 
tered the  temple.  The  many  Jews  who  received 
Roman  citizenship  in  all  parts  of  the  Empire 
were  certainly  not  excluded  from  the  national 
public  worship  merely  because  they  had  acquired 
these  rights. 

The  dissension  provoked  in  the  meeting  of  the 
Sanhedrin  by  the  proclamation  of  Paul  that  he 
was  a  Pharisee  was  terminated  by  Roman  sol- 
diers, acting  under  orders  of  the  tribune,  who 
commanded  them  to  remove  Paul  again  to  the 
castle.  A  conspiracy  on  the  part  of  Paul's 
enemies  to  seize  him  and  put  him  to  death  induced 
the  tribune  to  send  Paul  under  a  strong  military 
escort  to  Caesarea,  where  Felix  the  procurator 

«Philo,  Leg.  31;  C.  I.  G.  2222;  Clermont-Ganneau,  Une  stele 
du  temple  de  Jerusalem  (1872)  =  Dittenberger,  O.  O.  I.  8.  2,  598; 
cp.  Jos.  Ant.  XV,  419;  c.  Apion.  II,  110. 


CRIMINAL  TRIALS  171 

of  the  province  could  investigate  the  case.  The 
history  of  the  later  legal  difficulties  of  Paul  is 
connected  only  with  the  jurisdiction  of  the 
Roman  courts.  But  perhaps  one  further  point 
deserves  some  attention.  Festus,  after  the  first 
hearing  at  Caesarea,  traveled  to  Jerusalem,  and 
there  fell  in  with  those  Jews  who  were  most 
anxious  to  have  Paul  suffer  the  extreme  penalty 
of  the  law  for  his  alleged  offenses.  Wh6n  Festus 
returned  to  Caesarea,  he  asked  Paul  where  he 
would  choose  to  have  the  next  hearing,  or  trial, 
take  place :  "Wilt  thou  go  up  to  Jerusalem,  and 
there  be  judged  of  these  things  before  me?"44 
But  Paul,  probably  fearing  the  outcome  of  a  trial 
in  Jerusalem,  for  he  remembered  distinctly  the 
influence  of  the  mob  of  that  city  upon  Pilate  in 
the  trial  of  Jesus,  refused  to  go,  and  immediately 
took  an  appeal  to  the  court  of  the  emperor  at 
Rome.  There  was  here  no  question  of  a  conflict 
of  jurisdiction  between  the  Roman  and  the  Jew- 
ish courts,  nor  even  of  an  alternative  jurisdiction, 
as  some  have  held.  It  seems  never  to  have  oc- 
curred to  Felix  that  it  would  be  within  his  power 
to  surrender  his  prisoner  to  the  Sanhedrin  for 
trial.  Nor  could  it  have  occurred  to  Paul  that 
he  would  be  surrendered  by  Felix.  They  must 
both  have  expected  that  in  Jerusalem  the  Sanhe- 
drin would  appear  simply  as  witnesses  or  prose- 
cutors. The  functions  of  the  Sanhedrin  must  be 

"Acts,  XXV,  9. 


172          THE  PROSECUTION  OF  JESUS 

studied  quite  apart  from  the  case  of  Paul,  for 
that  case  offers  not  the  slightest  evidence  on 
either  side  of  the  question. 

Two  other  cases  have  sometimes  been  cited  by 
scholars  in  the  effort  to  prove  that  the  Sanhedrin 
had  jurisdiction.  The  first  is  one  mentioned  in 
the  Talmud,  of  the  trial  for  adultery  of  the 
daughter  of  a  priest.45  But  the  text  gives  no  hint 
of  the  time  at  which  the  case  arose,  nor  is  it  indeed 
quite  certain  that  it  is  anything  but  a  fictitious 
case,  assumed  for  the  purpose  of  teaching  the 
proper  procedure  in  the  conduct  of  a  trial  of  this 
kind.  The  second  is  related  by  Josephus.46  At 
the  time  of  the  attack  upon  Jerusalem  by  the 
Idumaeans,  during  the  last  great  war,  the  reputa- 
tion and  the  wealth  of  Zacharias  aroused  the  hos- 
tility and  cupidity  of  the  attacking  force,  so  they 
had  him  seized.  They  caused  seventy  prominent 
persons  to  be  selected  as  a  jury,  and  forced  these 
to  try  Zacharias.  But  Josephus  immediately 
says  that  this  court  had  no  authority.  The  whole 
trial  is  but  an  example  of  the  lawlessness  of  a 
barbarian  mob  when  successful.  Probably  if 
there  had  been  a  Sanhedrin  with  recognized 
powers  of  trial  the  Idumaeans  would  not  have 
resorted  to  this  curious  expedient.  These  two 
cases  must,  therefore,  be  cast  aside  in  a  considera- 
tion of  the  juristic  conditions  of  Judea. 

45  Mishna,  Sank.  7,  2. 

46  Bell.  IV,  335-344. 


CRIMINAL  TRIALS  173 

A  study  of  these  cases  forces  one  to  the  con- 
clusion that  no  single  one  of  them,  either  in  the 
New  Testament  or  in  other  writings,  affords 
even  the  smallest  amount  of  proof  that  the  Sanhe- 
drin  possessed  criminal  jurisdiction  after  the 
coming  of  the  procurators  to  Judea.  Their  sole 
connection  with  any  criminal  case  is  that  they  did 
sometimes  make  investigations,  and  the  only 
reasonable  explanation  is  that  these  investiga- 
tions were  conducted  for  the  purpose  of  prepar- 
ing an  indictment  to  submit  to  the  properly 
constituted  court  of  the  Romans.  Any  other 
method  of  administering  the  criminal  law  would 
place  Judea  in  a  category  different  from  that  of 
other  provinces.  Whoever  inserted  in  the  narra- 
tive of  Josephus  the  paragraph  dealing  with 
Jesus  must  have  recognized  this  fact,  for  he  says 
that  Jesus  was  condemned  to  the  cross  by  Pilate, 
upon  information  given  him  by  the  principal  men 
among  the  Jews.47 

In  turning  to  a  study  of  the  judicial  powers  of 
the  procurator  of  Judea,  it  is  first  of  all  necessary 
to  protest  against  a  view  which  has  become  all  too 
common  of  late  in  the  treatments  of  the  trial  of 
Jesus.  The  erroneous  theory  is  rapidly  becoming 
current  that  the  procurator  did  not  possess  inde- 
pendent jurisdiction,  but  had  the  power  to  hold 
court  only  when  delegated  to  do  so  by  the  gov- 
ernor of  Syria.  Apparently  this  view  was  started 

47  Jos.  Ant.  XVIII,  64. 


174          THE  PROSECUTION  OF  JESUS 

by  Rosadi  in  1905,  but  it  has  been  repeated  dili- 
gently by  the  majority  of  writers  since  that  date. 
It  has  already  been  shown  that  the  governor  of 
Syria  had  a  very  considerable  influence  on  the 
internal  administration  of  Judea  from  the  time 
of  its  subjugation  by  Pompey  to  the  year  in 
which  Herod  was  appointed  client  king.  But 
during  the  long  reign  of  Herod,  and  during  that 
of  Archelaus,  the  only  interference  that  came 
from  the  outside  was  that  of  the  emperor  himself. 
When  Herod  wished  to  engage  in  any  special 
enterprise,  he  first  gained  the  sanction  of  the  em- 
peror, but  there  is  no  evidence  that  he  ever  sought 
the  consent  of  the  governor  of  Syria.  It  would 
be  quite  at  variance  with  the  administrative  prac- 
tice of  the  Romans  that  a  client  prince  should 
have  direct  relations  with  any  authority  other 
than  that  of  the  Roman  central  government. 

With  the  deposition  of  Archelaus  the  rule  of 
the  native  princes  came  to  an  end,  and  the  ad- 
ministration of  Judea  fell  into  the  immediate 
hands  of  the  emperor.  Judea  then  became  one 
of  the  group  of  small  provinces  ruled  by  gov- 
ernors appointed  by  the  emperor,  and  bearing 
the  title  of  procurators.  These  procurators  had 
precisely  the  same  functions  as  did  the  governors 
of  the  larger  provinces,  but  were  of  inferior  rank, 
only  because  their  provinces  were  of  less  impor- 
tance. There  were  usually  few  troops  stationed 
in  them,  and  in  emergencies  the  governor  was 


CRIMINAL  TRIALS  175 

expected  to  rely  upon  a  neighboring  larger  prov- 
ince for  military  support,48  but  no  other  form  of 
dependence  is  mentioned  by  any  of  the  ancient 
writers.  Scholars,  however,  have  seized  upon 
two  incidents  in  the  history  of  Judea,  in  an  at- 
tempt to  prove  that  Judea  was  in  a  position  of 
subordination  to  Syria,  although  it  was  shown 
long  ago  by  Hoeck,  and  more  recently  by  Hirsch- 
feld,  that  these  incidents  are  utterly  worthless  as 
evidence  for  that  theory. 

The  first  of  the  two  incidents  is  the  deposition 
of  Pilate  by  Vitellius.49  Pilate  was  dismissed 
from  his  position,  and  sent  back  to  Rome,  there 
to  be  tried  for  misgovernment  in  Judea.  It  is 
claimed  that  Vitellius,  in  his  capacity  of  governor 
of  Syria,  had  the  power  to  depose  the  procurator 
of  Judea.  But  Tacitus,  in  giving  an  account  of 
the  functions  of  Vitellius,  says  that  he  was  not 
only  appointed  governor  of  Syria,  but  that  he 
received  the  special  commission  of  organizing  af- 
fairs throughout  the  east.50  Syria  was  centrally 
located  for  such  a  purpose,  and  its  governor  al- 
ways had  several  legions  at  his  disposal,  so  that 
he  could  readily  take  charge  of  particular  pro- 
jects such  as  the  emperor  desired.  Josephus  con- 
firms in  an  interesting  way  the  statement  of 
Tacitus  that  Tiberius  conferred  unusual  power 

48  Tac.  Hist.  I,  11. 
«Jos.  Ant.  XVIII,  89. 
BO  Ann.  VI,  32. 


176          THE  PROSECUTION  OF  JESUS 

upon  Vitellius.  He  says  that  Tiberius  sent  a 
letter  to  Vitellius,  instructing  him  to  aid  Herod 
Antipas  in  making  war  upon  Aretas,  king  of 
Arabia  Petraea.51  Thereupon  Vitellius  collected 
troops  from  all  the  Roman  dominions  adjacent 
to  his  own  province  of  Syria.  This  he  could  not 
have  done  unless  he  had  received  a  special  com- 
mission. But  he  returned  with  his  troops  to 
Antioch,  as  soon  as  the  news  of  the  death  of 
Tiberius  reached  him,  for  it  was  necessary  that 
he  obtain  the  sanction  of  the  successor  to  Tiberius 
in  order  to  carry  out  the  extraordinary  measures 
for  which  he  was  empowered  by  Tiberius.  It 
would  not  be  necessary  for  him  to  suspend  his 
operations  provided  the  things  in  which  he  was 
engaged  were  those  which  were  ordinarily  re- 
garded as  part  of  the  function  of  the  governor 
of  Syria. 

A  few  years  later  a  quarrel  arose  between  the 
Samaritans  and  the  Galilean  Jews.  The  Samari- 
tans complained  to  the  procurator  Cumanus,  but 
at  first  received  little  attention.  Later  Cumanus 
sent  troops  to  stop  the  quarrel,  and  slew  or  cap- 
tured large  numbers  of  Jews.  Then,  according 
to  the  account  given  by  Josephus,  the  Jews 
brought  the  case  to  the  attention  of  Quadratus, 
the  governor  of  Syria.  Quadratus  deposed  Cu- 
manus and  sent  him  to  Rome  to  be  tried  by  the 
emperor.52  From  Josephus  one  gains  the  im- 

si  Ant.  XVIII,  115-124. 

52  Jos.  Bell  II,  232-244;  Ant.  XX,  118-133. 


CRIMINAL  TRIALS  177 

pression  that  the  Jews  made  their  appeal  to 
Quadratus  because  he  was  the  overlord  of  the 
procurator  of  Judea.  But  Tacitus  sets  the  mat- 
ter right  by  the  statement  that,  when  the  dis- 
turbance in  Judea  arose,  the  emperor  appointed 
Quadratus  to  be  an  arbitrator  and  settle  the 
whole  case.53  Quadratus,  therefore,  like  Vitellius 
before  him,  acted  under  a  special  commission,  and 
not  by  virtue  of  being  the  superior  officer  of  the 
procurator  of  Judea.  It  may  be  that  a  recollec- 
tion of  these  two  incidents  misled  Josephus  into 
making  the  remark  that  Judea  became  a  part  of 
the  province  of  Syria  when  Archelaus  was 
deposed. 

The  arguments  which  have  just  been  met  had 
at  least  some  historical  foundation,  and  were, 
therefore,  entitled  to  a  reasoned  refutation.  But 
the  final  argument,  which  has  frequently  been 
much  used,  is  so  far  from  possessing  a  real  basis 
that  it  would  be  allowed  to  pass  unnoticed,  were 
it  not  for  the  fact  that,  since  the  publication  of 
Rosadi's  book,  it  has  often  been  copied  in  other 
works.  The  statement  is  made  that  no  procura- 
tor possessed  jurisdiction  of  any  kind  unless  he 
received  some  form  of  delegation  from  a  superior 
officer.  In  the  case  of  the  procurator  of  Judea 
the  superior  officer  is  assumed  to  have  been  the 
governor  of  Syria,  and  the  claim  is  made  that 
Pilate  could  not  have  conducted  a  case  against 

63  Ann.  XII,  54. 


178          THE  PROSECUTION  OF  JESUS 

Jesus,  or  against  any  other  defendant,  until  he 
was  granted  that  right  by  the  Syrian  governor. 
This  absurd  error  has  arisen  from  certain  state- 
ments occurring  in  the  Roman  civil  code,  com- 
piled under  direction  of  Justinian  between  the 
years  A.  D.  529  and  533.  There  it  is  said,  clearly 
and  distinctly,  that  a  procurator  must  not  hear 
cases  unless  delegated  by  the  provincial  governor, 
and  in  this  situation  the  procurator  acts  in  the 
capacity  of  vice  governor  of  the  province. 

One  would  think  that  any  person,  seeing  such 
a  statement  in  Justinian,  would  raise  in  his  own 
mind  the  question  of  its  application  to  a  period 
five  hundred  years  earlier.  But  apparently  this 
has  never  occurred  to  the  holders  of  the  doctrine. 
The  most  elementary  study  of  the  Roman  pro- 
vincial administration  divulges  the  fact  that  the 
word  "procurator"  was  used  in  two  different 
meanings.  In  the  time  of  Justinian  no  distinc- 
tion was  made,  for  all  procurators  had  but  one 
function — they  were  financial  agents  in  the  prov- 
inces, and  were  subject  to  the  direction  of  the 
governors.  At  the  time  of  Augustus  and  his  im- 
mediate successors,  however,  the  Empire  was  still 
being  organized,  and  new  sections  were  con- 
stantly being  added.  Some  of  these  sections  were 
extremely  small,  but  for  various  reasons  it  did 
not  appear  advisable  to  incorporate  them  in 
already  existing  neighboring  provinces.  So  they 
were  given  their  own  governors,  whose  position 


CRIMINAL  TRIALS  179 

was  not  sufficiently  exalted  to  merit  the  fine  title 
"Legatus  Augusti,"  but  seemed  to  call  for  a  less 
high-sounding  name.  Such  governors  were 
named  "Procurators,"  although  the  same  word 
was  already  in  use  to  designate  the  financial 
agents  of  the  government  in  other  provinces. 
The  procurators  of  Judea  belonged  to  this  class. 
The  well  known  sketch  by  Tacitus  of  the  condi- 
tion of  the  Empire  at  the  death  of  Nero  contains 
a  fairly  full  list  of  these  smaller  procuratorial 
provinces. 

But  the  powers  and  the  functions  of  the  pro- 
curators in  the  lesser  provinces  did  not  differ  to 
the  smallest  degree  from  those  of  their  colleagues 
in  the  most  extensive  and  pretentious  portions  of 
the  Empire.  The  highest  power  granted  to  the 
governor  of  any  province  was  the  power  of  life 
and  death  (ius  gladii) ,  and  it  is  a  matter  of  record 
that  this  power  was  bestowed  upon  the  procura- 
tors in  the  procuratorial  districts  of  Mauretania,54 
Sardinia,55  Rhaetia,56  Moesia  Inferior,57  and  the 
Alpine  districts.58  Without  doubt  it  was  ex- 
tended to  the  procurators  in  all  the  procuratorial 
provinces.  The  sources  state  that  exactly  the 
same  power  was  conferred  upon  the  procurators 

s*  C.  I.  L.  VIII,  9367. 
ss  C.  I.  O.  2509. 

5eMommsen,  in  Sitz.-Ber.  d.  Berl.  Akad.   1903,  p.  817,  on  an 
inscription  from  Baalbek. 
67  C.  I.  L.  II,  484. 
58  Orel!  3888;  C.  I.  L.  IX,  5439. 


180          THE  PROSECUTION  OF  JESUS 

of  Judea.  The  first  procurator,  Coponius,  came 
"with  supreme  power,"59  also  called  "the  power 
of  life  and  death."60  Later  governors  suffered 
no  diminution  of  authority.  It  is  unnecessary 
to  mention  the  various  incidents  in  the  governor- 
ships of  the  procurators  which  prove  that  this 
supreme  power  was  actually  used  by  almost 
every  governor  of  Judea  from  Coponius  to  the 
fall  of  Jerusalem.  All  of  these  arguments  taken 
together  are  sufficient  to  prove  that  the  notion 
that  the  procurator  did  not  possess  independent 
jurisdiction  is  utterly  without  foundation. 

The  conclusion  reached  by  the  whole  investiga- 
tion into  the  question  of  criminal  jurisdiction  in 
the  province  is  that  none  but  the  governor  had 
the  right  to  try  a  single  criminal  case.  Some- 
times it  happened  in  Egypt  that  the  governor 
delegated  to  one  of  his  subordinates  the  duty  of 
hearing  individual  minor  cases,  and  possibly  this 
happened  in  Judea  also.  But  of  that  there  is 
no  evidence.  If  it  ever  took  place  the  delegation 
would  undoubtedly  have  been  to  the  Sanhedrin. 
It  is  quite  beyond  belief,  however,  that  any  crimi- 
nal case  could  have  been  heard  by  a  native  court 
with  independent  jurisdiction.  For  this  reason 
we  are  bound  to  maintain  that  the  hearing  of 
Jesus  before  the  Sanhedrin  had  for  its  object 
only  the  preparation  of  an  indictment  to  submit 

B»  Jos.  Ant.  XVIII,  2. 
eo  Jos.  Bell.  II,  117. 


CRIMINAL  TRIALS  181 

to  the  governor.  In  this  respect  the  position  of 
the  Sanhedrin  was  exactly  that  of  the  strategus 
in  a  nomos  of  Egypt. 

Such  information  as  we  possess  from  other 
parts  of  the  Empire  is  thoroughly  in  accord  with 
this  view  of  the  situation.  For  example,  it  is 
capable  of  almost  complete  demonstration  for 
the  provinces  of  Asia,  Africa,  Gaul,  Pannonia, 
Dalmatia  and  Spain.  There  is  not  a  shred  of  evi- 
dence from  any  province  of  the  Empire  that 
points  in  the  opposite  direction.  But  there  is  one 
qualification  to  be  made.  Certain  cities  here  and 
there  were  particularly  favored,  and  were  granted 
local  self-government.  These  were  known  as 
"free  cities"  but  there  was  not  one  of  them  in 
Judea. 


CHAPTER  VII 

THE  GOSPEL  TEXT  DESCRIBING  THE  HEARING 
BEFORE  THE  SANHEDRIN 

In  the  face  of  the  full  narratives  of  the  four 
evangelists,  and  in  the  face  of  the  universal  belief 
of  the  church  in  the  apostolic  and  the  post- 
apostolic  ages,  it  becomes  impossible  to  ignore  the 
important  part  played  by  the  Sanhedrin  in  the 
trial  of  Jesus.  That  this  court  had  a  definite 
official  connection  with  the  case  admits  of  no 
doubt.  The  exact  nature  of  that  connection  is 
made  clear  by  a  consideration  of  the  procedure 
adopted  in  the  Roman  courts  in  instituting  crimi- 
nal actions. 

The  Romans  did  not  possess  an  officer  whose 
duties  were  those  of  the  prosecuting  attorney  in 
the  service  of  the  state.  A  crime  might  be  com- 
mitted, but  no  notice  would  be  taken  of  it  until 
some  citizen  formally  presented  a  charge  against 
the  alleged  criminal.  Instituting  a  criminal 
action  was  dependent  almost  wholly  upon  private 
initiative,  for  the  state  very  rarely  undertook  a 
prosecution  on  its  own  motion  or  on  its  own  re- 
sponsibility. At  Rome  there  was  a  separate 


GOSPEL  TEXT  183 

court  for  the  hearing  of  cases  of  each  kind  of 
crime.  If  the  crime  of  treason  was  committed, 
the  first  step  in  the  case  was  that  a  citizen  ap- 
peared at  the  office  of  the  praetor  in  charge  of 
the  court  of  treason,  and  lodged  a  definite  com- 
plaint. The  praetor  would  then  investigate  with 
some  particularity,  in  order  to  discover  whether 
the  complainant  could  furnish  sufficient  evidence 
to  justify  him  in  holding  a  formal  trial.  If  he 
felt  that  the  evidence  was  sufficient  he  accepted 
the  accusation  and  appointed  a  time  for  the  hear- 
ing of  the  case.  The  complainant  then  became 
the  official  prosecutor,  and  was  expected  to  con- 
duct the  case  and  guarantee  the  presence  of 
witnesses. 

The  governor  in  a  province  corresponded  to 
the  presiding  praetor  of  a  criminal  court  at  Rome. 
But  there  was  a  very  important  difference  in  the 
manner  in  which  the  two  officers  handled  the 
initial  stages  of  a  criminal  suit.  A  praetor  in 
Rome  was  at  his  office  for  almost  the  whole  year, 
while  the  governor  of  a  province  visited  only  oc- 
casionally the  places  in  which  he  was  to  hold 
court.  It  became  necessary,  therefore,  for  the 
preliminaries  of  the  cases  in  the  provinces  to  be 
entrusted  to  persons  appointed  for  that  purpose. 
These  presented  the  cases  to  the  governor  when 
he  appeared  on  his  circuit.  Such  was  the  position 
of  the  Sanhedrin  in  the  prosecution  of  Jesus  be- 
fore Pilate.  They,  or  their  representatives, 


184          THE  PROSECUTION  OF  JESUS 

lodged  the  complaint  and  became  the  plaintiffs 
in  the  Roman  court. 

The  Sanhedrin,  having  arrested  Jesus,  pro- 
ceeded to  investigate  his  public  life  and  activities, 
with  a  view  to  presenting  charges  against  him 
before  Pilate.  Hence  arose  the  examination  of 
Jesus  by  the  Sanhedrin  in  its  formal  meeting,  or 
meetings.  Arguments  have  already  been  given 
at  some  length  to  show  that  the  accounts  in  the 
Gospels  of  these  meetings  will  not  permit  us  to 
believe  that  the  writers  are  describing  formal 
judicial  proceedings  of  the  nature  of  a  trial.  But 
the  question  must  next  be  raised  whether  these 
same  narratives  will  permit  of  the  assumption 
that  they  were  intended  to  describe  a  mere  pre- 
liminary investigation,  leading  up  to  the  institu- 
tion of  a  criminal  action  against  Jesus.  A  care- 
ful and  critical  reading  will  show  that  they  do 
not  forbid  us  to  explain  the  proceedings  in  this 
way,  although  they  do  forbid  the  traditional  ex- 
planation. At  the  same  time,  the  Gospel  narra- 
tives contain  much  that  is  unnecessary  in  the 
description  of  an  investigation,  and  much  that 
might  be  considered  highly  improbable. 

Critical  analysis  of  the  text  of  the  Gospels  has 
advanced  very  rapidly  since  1893,  when  Brandt 
published  his  keen  and  penetrating  study  of  the 
origins  of  the  synoptic  Gospels.  Within  the  last 
twenty  years  many  critical  commentaries  have 
appeared,  in  which  the  text  has  been  subjected 


GOSPEL  TEXT  185 

to  the  kind  of  scrutiny  which  has  characterized 
the  study  of  the  Homeric  poems  since  the  days 
of  Wolf.  In  large  measure  the  criticism  has  been 
based  upon  an  analysis  of  the  progress  of  the 
story  in  each  Gospel,  and  the  aim  has  been  to 
ascertain  what  was  the  earliest  form  in  which  the 
story  of  the  life  of  Jesus  was  written.  While  it 
cannot  be  said  that  up  to  the  present  there  is  a 
very  general  agreement  as  to  the  origin  of  each 
episode  narrated  in  the  Gospels,  certain  large 
doctrines  have  received  a  fairly  broad  acceptance. 
Since  this  is  not  the  place  to  enter  into  a  full 
discussion  of  the  text  or  its  origins,  only  those 
matters  will  be  mentioned  which  are  of  immediate 
importance  in  a  determination  of  the  text  of  the 
description  of  the  trial,  and  even  there  the  results 
of  the  investigations  will  be  given  to  the  exclusion 
of  detailed  discussion. 

For  the  most  part  the  critical  work  of  scholars 
has  had  for  its  object  the  discovery  of  that  form 
of  the  story  of  the  life  of  Jesus  from  which  the 
others  have  been  derived.  This  aim  has  led  to 
the  most  minute  examination  of  each  variant  in 
the  narrative  of  every  episode  in  the  four  Gos- 
pels. The  critics  in  this  field,  like  the  critics  in 
every  other  department  of  learning,  may  be 
classified  into  conservative  and  radical,  according 
to  the  extent  to  which  they  reject  portions  of  the 
Gospels  as  late  additions  to  the  primitive  narra- 
tive. But  it  should  be  borne  in  mind  that  the 


186          THE  PROSECUTION  OF  JESUS 

criticism  of  recent  years  has  frequently  not  gone 
beyond  the  point  of  ascertaining  which  of  the 
extant  versions  of  an  episode  may  be  regarded 
as  the  most  primitive ;  in  many  instances  no  effort 
has  been  made  to  examine  that  primitive  form 
for  the  purpose  of  investigating  its  credibility. 
On  the  other  hand,  too  often  those  portions  which 
are  rejected  as  being  later  interpolations  are  cast 
aside  without  an  adequate  investigation  as  to 
whether  they  may  not  in  reality  be  trustworthy 
corrections  or  justifiable  additions.  Later  his- 
torians frequently  give  a  truer  picture  of  an  event 
than  do  those  who  write  soon  after  the  occurrence 
of  the  episode  itself.  With  this  in  view,  ever 
since  the  days  of  Strauss  efforts  have  sometimes 
been  made  to  penetrate  even  into  this  difficult 
problem,  and  the  results  of  such  research  are  ex- 
tremely valuable,  notwithstanding  the  fact  that 
these  scholars  are,  as  a  rule,  very  radical. 

In  the  view  of  the  somewhat  conservative 
critics,  the  following  may  be  considered  the 
earliest  extant  form  of  the  story  of  the  appear- 
ance of  Jesus  before  the  Sanhedrin: 

Now  the  chief  priests  and  the  whole  council 
sought  false  witness  against  Jesus,  that  they 
might  put  him  to  death;  and  they  found  it  not, 
though  many  false  witnesses  came.  But  after- 
ward came  two,  and  said,  This  man  said,  I  am 
able  to  destroy  the  temple  of  God,  and  to  build 
it  in  three  days.  And  the  high  priest  stood  up, 


GOSPEL  TEXT  187 

and  said  unto  him,  Answereth  thou  nothing? 
what  is  it  which  these  witness  against  thee?  But 
Jesus  held  his  peace.  And  the  high  priest  said 
unto  him,  I  adjure  thee  by  the  living  God,  that 
thou  tell  us  whether  thou  art  the  Christ,  the  Son 
of  God  (Matthew,  XXVI,  59-63). 

But  he  said  unto  them,  If  I  tell  you,  ye  will  not 
believe:  and  if  I  ask  you,  ye  will  not  answer. 
But  from  henceforth  shall  the  Son  of  man  be 
seated  at  the  right  hand  of  the  power  of  God 
(Luke,  XXII,  67b-69). 

Then  the  high  priest  rent  his  garments,  saying, 
He  hath  spoken  blasphemy:  what  further  need 
have  we  of  witnesses?  behold,  now  ye  have  heard 
the  blasphemy:  what  think  ye?  They  answered 
and  said,  He  is  worthy  of  death  (Matthew, 
XXVI,  65-66). 

And  straightway  in  the  morning  the  chief 
priests  with  the  elders  and  scribes,  and  the  whole 
council,  held  a  consultation,  and  bound  Jesus,  and 
carried  him  away,  and  delivered  him  up  to  Pilate 
(Mark,  XV,  1). 

But,  considered  as  an  historical  document,  this 
account  is  open  to  many  of  the  objections  that 
are  urged  against  the  account  framed  under  the 
combining,  or  harmonizing,  method,  upon  which 
the  writers  on  the  trial  have  commonly  based 
their  treatments.  An  examination  of  this  narra- 
tive in  detail  will  first  be  given,  and  this  will  be 
followed  by  a  criticism  of  the  account  in  some 
of  its  larger  and  more  significant  features. 


188          THE  PROSECUTION  OF  JESUS 

In  the  first  sentence  of  the  narrative  the  state- 
ment is  made  that  the  Sanhedrin  sought  for 
"false"  witnesses  against  Jesus.  It  is  difficult  to 
believe  that  the  word  "false"  should  find  a  place 
in  an  accurate  report  of  the  proceedings.  If  the 
Sanhedrin  had  deliberately  searched  for  witnesses 
who  were  ready  to  perjure  themselves  for  the 
sake  of  convicting  Jesus,  it  is  inconceivable  that 
they  would  have  prepared  their  witnesses  so  badly 
that  "their  witness  agreed  not  together,"  or  that 
"they  found  it  not."  It  is  quite  credible  that  the 
members  of  the  Sanhedrin  would  avail  themselves 
of  the  services  of  perjurers,  provided  the  reputa- 
tion of  the  Sanhedrists  of  that  period  was  justi- 
fied. But  it  cannot  be  admitted  that  they  would 
show  so  little  intelligence  as  to  enter  into  league 
with  witnesses  whose  evidence  was  so  patently 
false  that  it  could  not  be  accepted  in  the  very 
court  that  employed  them.  And  yet  that  is  just 
what  happened,  according  to  the  view  of  the 
conservative  critics  as  well  as  according  to  that 
of  the  exponents  of  the  harmonizing  method.  It 
has  already  been  shown  that  the  penalty  for  per- 
jury was  that  the  perjurer  should  suffer  the 
penalty  prescribed  for  the  crime  of  which  he  ac- 
cused the  defendant.  If,  then,  the  Sanhedrin 
refused  to  accept  this  evidence,  and  it  was  very 
obvious  that  the  witnesses  were  perjured,  it  be- 
came the  duty  of  the  court  to  prosecute  the  wit- 
nesses. It  is  hard  to  believe  that  the  Sanhedrin 


GOSPEL  TEXT  189 

would  dare  to  omit  the  prosecution  of  these 
perjurers,  in  view  of  the  necessity  for  their  con- 
tinuing to  command  the  respect  of  the  people. 
For  these  reasons  it  is  quite  apparent  that  the 
word  "false"  in  Matthew's  account  cannot  be  his- 
torical. This  conclusion  is  sustained  also  by  the 
fact  that  Mark,  who  says  that  the  witnesses  were 
false  and  that  the  Sanhedrin  sought  for  witnesses, 
does  not  say  that  they  sought  for  false  witnesses. 
An  effort  has  occasionally  been  made,  both  in 
ancient  and  in  modern  times,  to  translate  the 
passage  in  a  slightly  different  way.  Some  have 
wished  to  represent  the  word  "false  evidence"  in 
Matthew  as  meaning  that  the  Sanhedrin  sought 
"evidence,  to  see  whether  or  not  it  was  false." 
But  that  is  not  an  acceptable  translation  of 
the  original  word  (^euSo/xaprvpta)  nor  does  it  suit 
the  context,  for  Matthew  continues:  "but  they 
found  it  not,  although  many  false  witnesses 
came."  The  thing  they  failed  to  find  is  clearly 
the  "false  witness." 

The  next  witnesses  gave  evidence  concerning 
a  statement  which  Jesus  had  made  with  reference 
to  the  destruction  of  the  temple.  Mark  says  that 
these  witnesses  also  were  false,  and  that  their  evi- 
dence did  not  agree.  But  Matthew  does  not  indi- 
cate either  that  they  were  false  or  that  their 
evidence  failed  of  perfect  agreement.  No  one  of 
the  synoptic  Gospels  mentions  such  a  remark  as 
having  been  made  at  any  time  during  the  ministry 


190          THE  PROSECUTION  OF  JESUS 

of  Jesus,  but  John  states  definitely  that  he  did 
make  a  striking  statement  about  his  own  power 
in  a  conversation  with  some  who  questioned  him. 
The  fact  of  his  having  said  something  on  this 
subject  is  clear  from  the  acceptance  of  it  by 
Stephen  a  little  later. 

The  form  which  John  gives  as  that  in  which 
Jesus  uttered  this  remarkable  statement  is: 
"Destroy  this  temple  and  in  three  days  I  will 
raise  it  up."  If  this  is  what  Jesus  actually  said, 
the  nature  of  his  offense  obviously  consisted  in 
the  claim  to  superhuman  power.  John  is  in  abso- 
lute agreement,  so  far  as  the  purport  of  the  say- 
ing is  concerned,  with  Matthew,  who  gives  the 
statement  of  Jesus  (but  in  the  mouth  of  hostile 
witnesses)  in  such  a  form  as  to  indicate  only  that 
Jesus  laid  claim  to  the  possession  of  great  power. 
But  Mark  gives  the  saying  in  a  very  different 
form:  "I  will  destroy  this  temple  that  is  made 
with  hands,  and  within  three  days  I  will  build 
another  made  without  hands."  A  threat  is  in- 
volved in  this,  and  to  all  appearances  a  threat 
against  the  temple  then  standing  in  Jerusalem. 
The  questioners  of  Jesus,  in  John's  narrative,  so 
understood  it,  for  they  said:  "Forty  and  six 
years  was  this  temple  in  building,  and  wilt  thou 
rear  it  up  in  three  days?"  The  saying  must  have 
been  commonly  reported  in  somewhat  the  form 
given  by  Mark,  and  must  have  been  interpreted 
as  a  threat  against  the  existing  temple,  for  it 


GOSPEL  TEXT  191 

constituted  one  of  the  main  charges  advanced 
against  Stephen,  and  Stephen  accepted  it  as  such. 
The  witnesses  against  him  testified:  "For  we  have 
heard  him  say  that  this  Jesus  of  Nazareth  shall 
destroy  this  place,  and  shall  change  the  customs 
which  Moses  delivered  unto  us."  The  whole  tenor 
of  Stephen's  defense  is  such  that  one  is  convinced 
that  Stephen  accepted  this  interpretation,  and 
sought  a  justification  of  it.  In  the  minds  of  con- 
temporary Jews,  therefore,  it  was  a  threat  against 
the  "temple  of  God,"  and  a  threat  against  the 
temple  indicated  an  attack  upon  established  cus- 
toms. In  the  Jewish  theocratic  government  that 
constituted  an  offense  punishable  by  death,  a 
penalty  from  which  Jeremiah  narrowly  escaped. 
It  is  interesting  also  to  notice  that  the  apostles 
and  the  early  Christians  felt  some  difficulty  in 
giving  a  satisfactory  explanation  of  the  saying. 
Thus,  John  endeavored  to  give  it  an  allegorical 
interpretation:  "But  he  spake  of  the  temple  of 
his  body."  Mark  simply  denied  it,  because  he 
apparently  was  uncertain  about  its  meaning,  and 
was  not  sure  that  an  allegorical  interpretation 
would  carry  conviction.  For  this  reason  he  says 
that  those  who  gave  evidence  on  this  saying  also 
were  false.  But  Mark,  even  while  claiming  that 
the  witnesses  were  false,  tries  to  render  the  state- 
ment innocuous  by  adding  the  phrases  "made 
with  hands,"  and  "made  without  hands."  This 
treatment  makes  the  statement  seem  harmless  .by 


192          THE  PROSECUTION  OF  JESUS 

reason  of  its  allegorical  language.  But  it  cannot 
be  the  original  form,  or  the  later  confession  of 
Stephen  would  be  quite  impossible.  Mark  seems 
also  to  admit  the  statement  in  its  simple  form, 
when  he  represents  the  passersby  while  Jesus  was 
on  the  cross  as  saying:  "Thou  that  destroyest  the 
temple,  and  buildest  it  in  three  days,  save  thyself, 
and  come  down  from  the  cross." 

This  verse  in  the  Gospel  of  Mark  is  commonly 
thought  by  critical  scholars  to  belong  to  the  latest 
additions  to  the  story  of  the  trial.  If  that  is  true, 
and  if  the  theory  of  Harnack,  that  Luke  com- 
posed the  Acts  about  A.  D.  65  is  accepted,  there 
is  a  possible  origin  for  the  form  of  the  statement 
of  Mark  that  the  temple  was  "made  with  hands." 
In  his  defense  of  himself  Stephen  recounts  the 
history  of  the  relation  of  the  people  of  Israel  to 
God,  leading  to  the  building  of  the  temple.  He 
brings  this  history  to  an  end  by  saying:  "But 
Solomon  built  him  a  house.  Howbeit  the  Most 
High  dwelleth  not  in  houses  made  with  hands." 
It  is  far  from  improbable  that  the  redactor  of 
Mark  used  this  passage  from  the  defense  of 
Stephen  to  soften  the  apparent  threat  against  the 
temple. 

For  all  these  reasons  it  is  very  probable  that 
the  statement  uttered  by  Jesus  was  much  nearer 
the  form  given  by  Matthew  than  that  given  by 
Mark,  except  that  it  must  surely  have  contained 
a  threat  rather  than  a  mere  claim  to  superhuman 


GOSPEL  TEXT  193 

power.  Several  scholars  very  reasonably  hold 
that  the  form  was  about  as  follows:  "I  shall 
destroy  the  temple  of  God  (or,  "this  temple"), 
and  build  it  again  in  three  days."  The  parallel 
cases  of  Jeremiah  and  Stephen  show  that  under 
the  Hebrew  ecclesiastical  law  this  threat  would 
be  punishable  by  death.  An  alternative  form  of 
the  threat  has  been  proposed  by  Bousset :  "There 
shall  not  be  left  one  stone  upon  another,  that  shall 
not  be  thrown  down,  and  within  three  days  an- 
other shall  arise,  made  without  hands."  It  can 
readily  be  seen  that  this  is  either  an  amalgama- 
tion of  several  clauses  now  standing  in  the  New 
Testament,  or  that  they  are  clauses  taken  from 
it.  Such  a  statement  could  readily  be  construed 
into  a  threat,  and,  in  the  mouths  of  those  report- 
ing it,  could  easily  be  transferred  from  the  third 
into  the  first  person.  And  yet  the  statement  ap- 
pearing in  Matthew  is  surely  closer  to  the  original 
form  of  the  threat  uttered  by  Jesus  than  is  that 
compiled  by  Bousset. 

When  the  charge  was  made  against  Jesus  that 
he  had  uttered  a  threat  involving  the  national 
religion,  the  high  priest  asked  him  what  reply  he 
could  give  to  the  charge,  but  Jesus  "held  his 
peace."  Those  who  claim  that  the  proceedings 
before  the  Sanhedrin  constituted  an  actual  and 
formal  trial  explain  the  silence  of  Jesus  as  a  pro- 
test against  the  illegality  of  the  whole  trial.  They 
declare  that  Jesus,  in  refusing  to  participate  in 


194          THE  PROSECUTION  OF  JESUS 

such  irregularities,  was  merely  standing  on  his 
rights  as  a  Jewish  citizen.  Jesus  would  not  allow 
himself  to  be  unlawfully  interrogated  by  the 
court.  But  this  contention  does  not  seem  reason- 
able, for  in  a  trial  on  an  accusation  which  might 
lead  to  a  death  sentence,  silence  is  unnatural,  and 
is  the  last  thing  to  be  expected.  One  does  not 
remain  silent,  even  as  a  protest,  when  his  life  is 
threatened,  and  especially  when  the  danger  is  im- 
minent. In  an  investigation,  however,  instituted 
for  the  purpose  of  preparing  a  formal  indictment 
to  submit  to  the  court,  a  person  might  conceivably 
refuse  to  plead,  even  though  his  silence  would  be 
construed  to  his  detriment.  Consequently  this 
clause  of  the  text  could  scarcely  be  allowed  to 
stand  as  part  of  the  portrayal  of  a  trial,  but  might 
be  regarded  as  genuine,  provided  one  believes 
that  the  Sanhedrin  was  conducting  only  an  in- 
vestigation. 

Many  scholars  have  felt  that  Christian  writers 
introduced  into  this  episode  the  story  of  the 
silence  of  Jesus,  occurring  both  here  and  a  little 
later  in  the  presence  of  Pilate,  as  an  evidence  of 
the  fulfilment  of  prophecy:  "He  was  oppressed, 
yet  when  he  was  afflicted  he  opened  not  his 
mouth ;  as  a  lamb  that  is  led  to  the  slaughter,  and 
as  a  sheep  that  before  its  shearers  is  dumb,  so  he 
opened  not  his  mouth."  It  has  been  thought  also 
that  Christian  writers  may  have  been  induced  to 
represent  Jesus  as  refusing  to  answer  by  the  fact 


GOSPEL  TEXT  195 

that  this  silence  makes  the  conduct  of  the  Jewish 
officials  seem  all  the  more  reprehensible.  This 
theory  would  be  particularly  attractive  if  it  could 
be  shown  that  the  evangelists  were  consciously 
trying  to  prove  that  the  founder  of  Christianity 
did  not  receive  a  fair  trial  at  the  hands  of  the 
Sanhedrin,  and  that,  owing  to  the  malicious  ef- 
forts of  the  Jewish  officials,  the  Roman  court 
could  not  show  the  clemency  which  Pilate  desired 
to  show.  If  the  Christians  could  make  this  ap- 
pear to  be  the  fact,  they  could  more  effectively 
make  an  appeal  to  Roman  subjects  to  espouse 
the  cause  of  Christianity,  for  the  Roman  subjects 
might  easily  be  led  to  believe  that  no  hostility  had 
existed  between  the  Empire  and  the  new  religion. 
It  is  often  said  that  the  same  attitude  is  manifest 
later  in  the  portrayal  of  Pilate  in  contrast  with 
the  accusers  of  Jesus. 

A  second  reason  is  often  given  for  believing 
that  this  verse  is  spurious.  The  same  situation  re- 
appears in  the  trial  before  Pilate.  It  is  considered 
highly  improbable  that  in  each  court  Jesus  should 
be  asked  two  questions,  and  should  answer  one 
on  each  occasion  and  refuse  to  answer  the  other. 
It  has  also  been  pointed  out  that  consent  and  re- 
fusal to  answer  on  the  two  occasions  are  skil- 
fully arranged  in  the  Gospels  in  chiastic  order. 
In  the  hearing  by  the  Sanhedrin  Jesus  refused 
to  answer  the  first  question,  but  did  make  reply 
to  the  second.  In  the  Roman  court  he  answered 


196          THE  PROSECUTION  OF  JESUS 

the  first  question,  but  thereafter  refused  to  speak. 
The  most  serious  objection  to  this  theory  is  that 
it  attributes  to  the  evangelists  a  greater  degree 
of  conscious  rhetoric  than  they  are  commonly 
credited  with.  It  should  be  noted  that  it  is  the 
same  question  which  is  answered  in  both  courts. 
The  question  is  whether  Jesus  was  the  Messiah. 
One  would  expect  that  to  be  the  final  question 
asked  by  the  Sanhedrin,  but  the  first  question  to 
be  asked  by  Pilate. 

At  the  meeting  of  the  Sanhedrin  the  great 
question  at  issue  was  the  determination  of  the 
truth  of  the  various  accusations  being  made 
against  Jesus.  When  the  witnesses  had  testified, 
it  was  natural  that  Jesus  should  be  asked  to  make 
reply.  He  could  deny  the  things  he  was  accused 
of  having  said  or  done.  But  his  silence  seemed 
to  be  an  admission  of  the  truth  of  the  charges. 
The  whole  court  knew  that  if  the  accusations 
against  Jesus  were  true  there  could  be  only  one 
explanation — he  must  claim  to  be  the  Messiah. 
The  one  reasonable  culmination  of  a  trial  or  an 
investigation  is  the  question  asked  him  by  the 
high  priest:  "Art  thou  the  Christ?"  But  when 
the  trial  before  Pilate  opened,  the  formal  charge 
was  presented  at  once.  In  Luke's  narrative  there 
were  three  items  in  the  indictment,  but  to  a 
Roman  it  was  all  included  in  the  last  clause :  "and 
claiming  that  he  is  Christ  a  king."  Pilate  began 
the  trial  by  asking  the  prisoner  to  plead  to  the 


GOSPEL  TEXT  197 

indictment,  and  especially  by  asking  for  an 
answer  to  the  clause  in  the  indictment  which  a 
Roman  would  regard  as  the  one  significant  point. 
Jesus  replied  to  the  main  question  in  both  courts, 
but  refused  to  plead  to  all  the  details  in  the  evi- 
dence. The  parallelism  in  the  two  accounts  can- 
not, therefore,  be  regarded  as  a  highly  dramatic, 
or  artificial,  arrangement,  but  rather  should  be 
considered  a  faithful  representation  of  the  history 
of  both  events.  Of  course  those  who  do  not  be- 
lieve that  Jesus  had  a  hearing  at  all  before  the 
Sanhedrin  cannot  accept  this  interpretation,  but 
will  continue,  naturally,  to  believe  that  the  epi- 
sode of  the  silence  of  Jesus  in  the  questioning  of 
the  high  priest  was  transferred  to  this  place  from 
the  story  of  the  hearing  by  Pilate.  But  if  there 
was  a  hearing  by  the  Sanhedrin,  this  passage 
cannot  be  pronounced  spurious. 

Since  the  high  priest  received  no  answer  to  his 
question,  he  asked  Jesus  a  second  question  in  a 
much  stronger  form:  "I  adjure  thee  by  the  liv- 
ing God,  that  thou  tell  us  whether  thou  art  the 
Christ,  the  Son  of  God."  This  is  the  language 
used  in  the  Gospel  of  Matthew,  and  is  thought 
by  the  majority  of  critics  to  be  equivalent  to  put- 
ting the  defendant  on  oath.  Many  claim  that  it 
was  contrary  to  Hebrew  usage  to  force  a  de- 
fendant to  take  the  witness  stand  in  his  own  de- 
fense, and  hold  this  to  be  another  example  of  the 
illegality  of  the  process  before  the  Sanhedrin. 


198          THE  PROSECUTION  OF  JESUS 

On  the  other  hand,  some  good  scholars  say  that 
the  question  was  merely  putting  the  evidence  in 
explicit  language,  and  did  not  constitute  an  oath. 
It  is  not  impossible  that  Mark  and  Luke,  feeling 
the  impropriety  of  attributing  the  question  in 
that  form  to  the  high  priest,  have  expressed  it 
in  a  milder,  but  equally  direct  way:  "Art  thou 
the  Christ,  the  Son  of  the  Blessed?"  These  are 
the  words  of  Mark,  but  those  of  Luke  are  of  the 
same  character. 

A  comparison  of  the  language  in  Matthew  with 
the  oath  as  it  is  given  in  the  Talmud  ought  to  con- 
vince every  one  that  the  high  priest  was  practically 
putting  Jesus  upon  his  oath,  provided  Matthew 
is  quoting  his  language  correctly.  The  question 
remaining  is  the  determination  of  its  appropriate- 
ness. It  is  very  doubtful  indeed  whether  it  would 
be  legal  for  the  presiding  officer  in  a  Hebrew 
court  to  place  the  defendant  on  the  stand,  with- 
out his  previous  consent.  In  a  preliminary  hear- 
ing, where  rigid  adherence  to  a  strict  set  of  rules 
would  not  be  obligatory,  there  could  be  no  legal 
objection  to  the  question,  but  it  certainly  seems 
possible  to  take  exception  to  administering  an 
oath  when  the  matter  is  viewed  from  any  other 
standpoint  except  the  strictly  legal.  A  simple 
question  "Art  thou  the  Christ?"  may  well  be  re- 
garded as  expressive  only  of  a  desire  that  the 
accused  enter  a  plea  of  guilty  or  not  guilty.  But 
the  oath  is  much  more  emphatic,  and  can  find  no 


GOSPEL  TEXT  199 

justification  unless  it  be  in  an  earnest  and  anxious 
expectation  that  the  accused  would  deny  it.  Had 
the  high  priest  wished  Jesus  to  incriminate  him- 
self by  the  admission  that  he  was  the  Messiah, 
he  would  not  have  prefaced  his  question  by  a 
solemn  adjuration.  Before  an  august  assembly, 
and  in  consequence  of  an  adjuration  so  sacred, 
a  false  Messiah  would  hesitate  long  to  declare 
himself  the  expected  leader  of  Israel.  One  can- 
not believe  that  a  judge  who  desired  the  convic- 
tion of  the  accused  would  use  that  form  of 
adjuration.  We  are  left  with  the  alternative  of 
believing  that  the  adjuration  must  be  differently 
interpreted,  or  of  declaring  spurious  those  clauses 
in  the  Gospels  descriptive  of  the  earlier  meetings 
of  the  Sanhedrin,  in  which  it  is  said:  "they  sought 
to  put  Jesus  to  death."  But,  as  the  indications 
are  clear  that  the  Sanhedrists  really  desired  the 
removal  of  Jesus,  one  is  forced  to  accept  the 
alternative  of  maintaining  that  the  adjuration 
said  by  Matthew  to  have  been  addressed  to  Jesus 
by  the  high  priest  cannot  be  genuine,  or  of  think- 
ing that  the  high  priest,  at  this  moment  of  excite- 
ment, actually  wished  Jesus  to  declare  himself 
not  guilty  of  making  such  a  claim.  The  simple 
question:  "Art  thou  the  Christ,  the  Son  of  the 
Blessed  One?"  is  much  to  be  preferred,  as  being 
consistent  with  the  desire  of  the  questioner,  and  as 
being  in  harmony  with  ordinary  procedure. 
Jesus  makes  reply  to  this  question,  confessing 


200          THE  PROSECUTION  OF  JESUS 

that  he  is  the  Christ.  The  wording  of  the  reply 
is  given  variously  in  the  Gospels,  but  it  seems  to 
be  the  somewhat  general  opinion  that  the  form 
appearing  in  Luke  best  harmonizes  with  the  sit- 
uation, and  is  more  convincing  than  those  in  the 
other  Gospels.  Whatever  may  have  been  the 
original  wording  of  the  confession,  it  is  certain 
that  the  confession  itself  was  considered  of  suffi- 
cient consequence  to  cause  the  investigation  to 
terminate,  and  to  induce  the  Sanhedrists  to  be- 
lieve that  the  evidence  against  Jesus  was  ade- 
quate for  submission  to  the  Roman  court. 

Matthew  and  Mark  relate  that  a  most  singular 
effect  was  immediately  produced  by  the  con- 
fession of  Jesus.  The  high  priest  "rent  his  gar- 
ments" and  declared  to  his  colleagues  that  Jesus 
had  committed  blasphemy.  The  tearing  of  the 
cloak  from  end  to  end  seems  to  have  occurred 
among  the  Hebrews  in  times  of  great  excitement 
or  horror.  For  example,  when  Paul  and  Barna- 
bas preached  at  Lystra,  they  healed  a  man  who 
had  been  a  cripple  from  birth,  and  the  multitude 
thought  that  the  gods  had  come  among  them. 
The  priest  of  Jupiter  brought  sacrifices,  and 
would  have  offered  them  to  the  two  apostles.  But 
"they  rent  their  garments,  and  sprang  forth 
among  the  multitude,  crying  out  and  saying, 
Sirs,  why  do  ye  these  things?  We  also  are  men 
of  like  passions  with  you."  A  similar  situation 
arose  when  the  children  of  Israel  were  in  the 


GOSPEL  TEXT  201 

wilderness.  When  the  discouraging  report  of  the 
spies  sent  out  to  investigate  conditions  in  Canaan 
came  to  them,  they  wished  to  return  at  once  to 
Egypt,  but  Joshua  and  Caleb,  two  of  the  spies, 
"rent  their  clothes;  and  they  spake  unto  all  the 
congregation  of  the  children  of  Israel,  saying, 
The  land,  which  we  passed  through  to  spy  it  out, 
is  an  exceeding  good  land.  .  .  .  Only  rebel  not 
against  Jehovah."  The  Talmud  says  that  when 
words  of  blasphemy  are  uttered,  the  rending  of 
the  garments  is  appropriate.  For  this  reason  one 
would  expect  that  the  high  priest  would  rend  his 
cloak  when  he  heard  the  words  of  Jesus.  In  this 
statement  we  have  the  best  evidence  that  exists 
that  the  high  priest  was  sincere  in  his  conduct  on 
this  occasion.  If  he  had  been  planning  this  out- 
come for  several  months,  he  would  have  been 
more  cool  and  collected  than  he  was.  Whether 
he  was  wearing  the  seamless  garment  of  the  high 
priest  is  unknown.  If  he  was  wearing  it,  his  for- 
getfulness  of  its  sacred  character  is  ample  proof 
of  his  great  excitement,  and  horror,  and  sincerity. 
As  soon  as  the  high  priest  had  declared  his  be- 
lief that  Jesus  was  guilty  of  blasphemy,  he  asked 
the  Sanhedrists  what  their  opinion  was.  They 
unanimously  expressed  their  agreement  with  the 
belief  of  the  high  priest,  and  said  that  Jesus  was 
worthy  of  death.  Their  expression  of  opinion 
would  seem  at  first  sight  to  be  quite  superfluous, 
in  view  of  the  fact  that  they  were  about  to  hold 


202         THE  PROSECUTION  OF  JESUS 

a  second  meeting  almost  immediately,  in  order 
to  review  the  evidence  and  to  consider  the  advisa- 
bility of  presenting  an  indictment  against  Jesus. 
Whether  we  are  to  regard  the  expression  of 
opinion  on  the  part  of  the  Sanhedrists  as  super- 
fluous or  not  will  depend  upon  our  attitude  to- 
ward the  reason  for  holding  a  session  by  night. 
Or,  one  may  go  still  further  and  say  that  it  de- 
pends on  whether  one  is  to  believe  that  a  session 
was  actually  held  at  night.  John  relates  that 
after  the  arrest  Jesus  had  a  private  conference 
with  the  high  priest,  but  leaves  the  reader  with 
the  idea  that  nothing  else  occurred  until  the 
Sanhedrin,  or  representatives  of  the  high  priest, 
led  Jesus  to  the  court  of  Pilate.  Luke's  account 
assumes  that  Jesus  was  held  in  custody  during 
the  night,  which  would  accord  with  the  ordinary 
procedure  in  criminal  cases,  but  that  early  in  the 
morning  he  was  broughht  before  the  Sanhedrin, 
and  was  interrogated  at  their  meeting.  Luke 
does  not  say  that  witnesses  appeared  at  this  meet- 
ing, but  his  question:  "What  further  need  have 
we  of  witnesses?"  implies  that  witnesses  had  al- 
ready testified.  Luke,  however,  does  not  tell  the 
nature  of  their  evidence,  nor  does  he  even  hint 
at  it.  At  the  conclusion  of  the  examination  of 
Jesus,  the  indictment  was  prepared  and  imme- 
diately submitted  to  Pilate.  But  a  totally  dif- 
ferent procedure  appears  in  Matthew  and  Mark. 
According  to  these  two  Gospels  a  meeting  of  the 


GOSPEL  TEXT  203 

Sanhedrin  was  held  during  the  night,  very  shortly 
after  the  arrest,  at  which  witnesses  were  exam- 
ined and  Jesus  was  questioned.  A  second  meet- 
ing was  held  early  in  the  morning.  Some  have 
maintained  that  the  wording  of  Mark's  narrative 
does  not  force  one  to  believe  that  the  writer  meant 
to  indicate  that  two  meetings  were  held,  but  that 
the  consultation  was  held  at  the  close  of  the  ex- 
amination of  Jesus.  This  examination  ended  as 
day  was  breaking.  But  that  seems  an  unnatural 
interpretation  of  the  wording  of  the  text. 

The  most  radical  critics  of  the  text  argue  that 
the  fourteenth  chapter  of  Mark  did  not  originally 
contain  an  account  of  the  session  by  night,  but 
that  its  presence  is  due  to  a  reviser  of  the  early 
form  of  that  Gospel.     This  does  not  mean  that 
the  reviser  himself  composed  the  story,  but  that 
he  simply  incorporated  in  the  chapter  certain 
incidents  which  were  current,  either  orally  or  in 
written  form,  among  the  first  Christians.    They 
believed  that  witnesses  against  Jesus  were  ex- 
amined by  the  Sanhedrin,  and  that  Jesus  had 
confessed  in  a  meeting  held  at  some  time  between 
the  arrest  and  the  delivery  of  the  prisoner  to 
Pilate.    According  to  these  critics,  the  only  meet- 
ing recorded  in  the  original  form  of  Mark  was 
the  one  held  for  the  purpose   of  consultation 
shortly  after  daybreak. 

It  seems  clear  that  Mark  and  Matthew,  in 
their  present  form,  have  conceived  of  the  pro- 


204          THE  PROSECUTION  OF  JESUS 

ceedings  against  Jesus  as  a  criminal  trial,  and 
have  endeavored  to  give  it  the  appearance  of  one. 
But  in  this  attempt  they  have  failed  signally,  for 
they  have  inserted  so  many  irregularities  that  the 
narratives  lose  all  trace  of  historical  accuracy. 
That  the  writer  of  Mark  in  its  present  form  was 
attempting  to  portray  a  criminal  trial  is  obvious 
from  the  statement  that  the  Sanhedrin  "con- 
victed" (KareKpLvav)  Jesus.  But  in  this  statement 
he  is  not  followed  by  Matthew.  When  the  ex- 
amination was  conceived  of  as  a  trial,  it  was  neces- 
sary to  assume  that  there  were  two  meetings,  in 
order  to  satisfy  Hebrew  procedure.  Since  the 
crucifixion  occurred  on  the  morning  following  the 
arrest,  it  became  necessary  to  place  the  first  meet- 
ing in  the  night.  Their  haste  is  explained  by  the 
fact  that  they  must  complete  the  whole  matter 
before  the  passover,  on  the  following  evening. 

The  great  objection  to  this  form  of  reasoning 
is  that  it  fails  to  explain  why  they  did  not  begin 
their  operations  a  day  earlier.  The  meeting  at 
which  the  Sanhedrin  laid  their  plans  occurred 
either  on  Tuesday  or  Wednesday,  and  no  ex- 
planation is  offered  for  their  failure  to  make  the 
arrest  at  least  a  day  earlier  than  they  actually 
made  it.  What  was  the  exact  effect  of  the  treach- 
ery of  Judas  is  not  made  perfectly  clear.  But 
if  they  had  anticipated  holding  a  formal  trial,  it 
is  inconceivable  that  they  would  have  postponed 
making  the  arrest  until  Thursday,  and  forced 


GOSPEL  TEXT  205 

upon  themselves  the  necessity  for  resorting  to 
numerous  infringements  of  their  own  rules  of 
procedure  in  criminal  cases.  The  logical  conclu- 
sion is  that  they  did  not  hold,  and  did  not  purpose 
holding,  a  formal  trial.  But,  in  that  case,  there 
was  no  necessity  for  holding  two  meetings  simply 
to  conduct  an  investigation.  This  leads  to  the 
belief  that  Luke's  narrative  is  the  accurate  one, 
and  that  no  session  whatever  was  held  during  the 
night.  It  should  also  be  pointed  out  that,  if  the 
session  at  night  was  planned  in  advance,  it  was 
managed  very  badly,  although  they  had  antici- 
pated it  for  some  months;  but,  if  it  was  not 
planned  in  advance,  it  is  incredible  that  seventy 
members  of  this  august  court,  together  with  the 
witnesses,  should  be  summoned  from  their  homes 
in  the  middle  of  the  night  to  hold  a  criminal  trial. 
Two  other  arguments  against  the  accuracy  of 
the  report  of  a  night  session  may  be  advanced 
from  the  standpoint  of  logical  composition.  In 
both  Matthew  and  Mark  the  story  of  the  mid- 
night session  is  woven  into  the  story  of  the  denial 
of  Jesus  by  Peter.  It  is  usually  thought  that 
Mark's  original  source  was  derived  from  Peter, 
and  that  this  explains  the  prominence  given  to 
the  episode  of  the  denial.  But  the  account  of 
the  meeting  interrupts  that  story,  and  bears  all 
the  evidences  of  an  interpolation.  According  to 
this  view,  the  original  form  of  the  story  narrated 
the  arrest  and  taking  of  Jesus  to  the  house  of  the 


206          THE  PROSECUTION  OF  JESUS 

high  priest,  the  denial  by  Peter,  the  mockery  of 
Jesus,  and  finally  the  account  of  the  morning 
session.  The  story  of  the  mockery  appears  in 
a  strange  situation  in  Matthew  and  Mark.  One 
cannot  avoid  the  feeling  that,  according  to  these 
two  Gospels,  the  mocking  was  done  by  members 
of  the  Sanhedrin.  It  is  impossible  to  comprehend 
how  a  writer  could  seriously  represent  dignified 
members  of  the  Jewish  supreme  court  as  per- 
forming the  undignified  and  revolting  acts  of 
spitting  upon  their  prisoner  and  calling  upon 
him  to  prophesy.  But  it  is  just  the  kind  of  rough 
joke  the  common  soldier  might  indulge  in.  This 
would  fit  the  story  naturally  provided  the  ac- 
count of  the  meeting  were  omitted,  for  in  that 
case  the  mocking  was  done  by  those  who  made 
the  arrest. 

But,  if  we  reject  the  accuracy  of  the  report 
that  there  was  a  meeting  at  night,  we  cannot  re- 
ject the  account  given  by  Luke  that  there  was 
a  meeting  in  the  morning.  Some  scholars  have 
held  that  the  three  earlier  meetings  of  the  Sanhe- 
drin were  sufficient,  and  that  not  even  one  was 
now  necessary.  That  cannot  be  right,  for  now  the 
purpose  was  to  get  the  pleading  of  the  prisoner, 
and  his  explanation  of  the  evidence  given  against 
him.  For  this  reason  it  must  have  been  the  in- 
tention of  the  Sanhedrin  to  cause  the  prisoner  to 
be  brought  face  to  face  with  the  witnesses  and 
given  a  chance  to  explain  his  actions  and  his 


GOSPEL  TEXT  207 

words.  Luke  can  be  regarded  as  thoroughly  ac- 
curate, but  he  omits  the  evidence  given  by  the 
witnesses  against  Jesus.  This  we  must  supply 
from  Mark,  as  well  as  from  the  form  of  indict- 
ment which  Luke  says  was  presented  to  Pilate. 

It  remains  to  put  together  the  proceedings  from 
the  time  of  the  arrest  until  Jesus  was  taken  to 
Pilate.  The  prisoner  was  led  bound  to  the  house 
of  the  high  priest  about  midnight,  and  was  kept 
there  until  morning.  This  accords  with  the  treat- 
ment received  by  Peter,  John,  Paul  and  other 
apostles.  In  the  morning  a  meeting  was  held  at 
which  Jesus  and  the  witnesses  against  him  were 
present.  After  both  had  been  heard,  the  Sanhe- 
drin  wrote  the  indictment,  and  took  Jesus  to 
Pilate  for  trial.  Given  in  the  language  of  the 
Gospels,  the  story  would  run  about  as  follows : 

And  as  soon  as  it  was  day,  the  assembly  of  the 
elders  of  the  people  was  gathered  together,  both 
chief  priests  and  scribes ;  and  they  led  him  away 
into  their  council  (Luke  XXII,  66). 

And  many  bare  false  witness  against  him,  but 
their  witness  agreed  not  together  (Mark  XIV, 
56). 

But  afterward  came  two,  and  said,  This  man 
said,  I  will  destroy  the  temple  of  God,  and  build 
it  in  three  days  (based  on  Matthew  XXVI, 
60b-61). 

And  the  high  priest  stood  up  in  the  midst  and 
asked  Jesus,  saying,  Art  thou  the  Christ,  the  Son 
of  the  Blessed  One?  (Mark  XIV,  60a,  61b). 


208          THE  PROSECUTION  OF  JESUS 

But  he  said  unto  them,  If  I  tell  you,  ye  will 
not  believe:  and  if  I  ask  you,  ye  will  not  answer. 
But  from  henceforth  shall  the  Son  of  man  be 
seated  at  the  right  hand  of  the  power  of  God 
(Luke  XXII,  67b-69). 

And  the  chief  priests  held  a  consultation  with 
the  elders  and  the  scribes  and  the  whole  council, 
and  bound  Jesus,  and  carried  him  away,  and  de- 
livered him  up  to  Pilate  (Mark  XV,  1,  omitting 
one  phrase) . 


CHAPTER  VIII 

THE  CRIMINAL  CHARGE  AGAINST  JESUS 

"Behold,  now  ye  have  heard  the  blasphemy. 
What  think  ye?  They  answered  and  said,  He 
is  worthy  of  death."  The  question  was  asked  by 
Caiaphas;  the  answer  was  given  by  the  Sanhe- 
drin.  With  this  conversation  the  hearing  of  Jesus 
by  the  Sanhedrin,  commonly  called  the  Jewish 
trial,  came  to  an  end.  According  to  the  tradi- 
tional interpretation,  in  these  words  Jesus  was 
convicted  of  blasphemy,  but  the  Jews,  who  knew 
well  that  Pilate  would  pay  little  attention  to  an 
accusation  of  that  kind,  shifted  their  ground  and 
concocted  a  charge  of  treason.  On  the  latter 
charge,  it  is  said,  Jesus  was  tried  in  the  Roman 
court,  and  was  crucified  in  consequence  of  the 
illegal  decision  of  this  court. 

The  belief  that  Jesus  was  tried  in  the  Roman 
court  on  a  charge  of  treason  is  thoroughly  sound, 
but  the  prevailing  opinion  that  he  was  also  con- 
victed by  the  Sanhedrin  for  blasphemy  cannot 
possibly  be  accepted.  It  would  be  the  greatest 
absurdity  to  convict  a  man  of  a  capital  crime, 
and  then  omit  any  further  reference  to  this  con- 

309 


210          THE  PROSECUTION  OF  JESUS 

viction  and  drop  all  consideration  of  a  penalty 
for  the  crime.  For  no  one  supposes  that  the 
crucifixion  was  to  the  smallest  degree  the  result 
of  a  conviction  for  blasphemy  pronounced  by  the 
Jewish  court. 

According  to  the  common  view,  the  right  to 
try  capital  cases,  and  even  the  right  to  pronounce 
sentences,  still  rested  with  the  Sanhedrin,  but  the 
actual  penalty  could  not  be  inflicted  until  the 
governor  had  given  his  sanction.  It  was  shown, 
however,  in  an  earlier  chapter  that  such  a 
method  of  handling  a  criminal  case  would  be 
utterly  at  variance  with  the  method  ordinarily 
adopted  by  the  Romans  in  their  government  of 
the  provinces.  It  was  also  shown  that  the  evi- 
dence for  the  possession  by  the  Sanhedrin  of  the 
power  of  trial  is  exceedingly  meager.  In  fact, 
practically  the  whole  argument  for  that  belief 
must  be  based  on  the  proceedings  against  Jesus, 
and  a  critical  examination  of  the  accounts  of  the 
hearing  before  the  Sanhedrin  proves  that  even 
this  case  cannot  support  the  common  view  except 
by  a  violent  misuse  of  the  rules  of  scientific  in- 
vestigation. The  circumstance  that  Jesus  was 
crucified  as  the  result  of  a  prosecution  in  the 
Roman  court  for  treason  should  be  sufficient 
justification  for  the  assertion  that  he  was  not 
even  convicted  in  the  Jewish  court  for  blasphemy. 
Conviction  is  followed  by  punishment,  but  Jesus 
was  not  punished  for  any  offense  against  the  He- 


CRIMINAL  CHARGE  AGAINST  JESUS   211 

brew  law.  The  real  situation,  that  the  Sanhedrin 
merely  prepared  the  case  for  submission  to  Pilate, 
is  exactly  duplicated  in  the  procedure  declared 
necessary  in  the  case  of  Paul:  "Festus  laid 
Paul's  case  before  the  king,  saying,  There  is  a 
certain  man  left  a  prisoner  by  Felix,  about  whom, 
when  I  was  at  Jerusalem,  the  chief  priests  and 
the  elders  of  the  Jews  informed  me,  asking  for 
sentence  against  him.  To  whom  I  answered  that 
it  is  not  the  custom  of  the  Romans  to  give  up  any 
man,  before  that  the  accused  have  the  accusers 
face  to  face,  and  have  had  opportunity  to  make 
his  defense  concerning  the  matter  laid  against 
him."1  The  Sanhedrin  had  not  in  that  case,  as 
they  had  not  in  this,  the  right  of  trial,  but  merely 
of  presenting  charges. 

Other  evidence  may  be  added  that  the  Jewish 
court  did  not  convict  Jesus.  The  Romans  per- 
formed the  act  of  inflicting  punishment,  the  Jews 
did  not.  It  is  inconceivable  that  the  power  of  try- 
ing criminals  and  of  declaring  a  conviction  should 
be  in  the  hands  of  any  court,  but  the  power  of 
punishment  should  not.  Still  more  strange  would 
be  the  futility  of  convicting  a  person  on  a  charge 
which  the  court  knew  would  be  allowed  to  go 
unpunished,  and  would  even  be  scorned  in  a  court 
which  had  the  power  of  revision.  It  would  be 
a  monstrous  thing  in  the  history  of  criminal  pro- 
cedure that  the  Sanhedrin  should  convict  Jesus 

lActs,  XXV,  15-16. 


212          THE  PROSECUTION  OF  JESUS 

on  a  charge  of  blasphemy,  and  then  ask  Pilate  to 
put  him  to  death  for  treason,  a  charge  on  which 
they  had  not  even  examined  him. 

The  Sanhedrin  either  convicted  Jesus  of  trea- 
son or  they  did  not  convict  him  at  all.  But  if  we 
maintain  that  the  Sanhedrin  convicted  him  of 
treason,  we  are  put  in  the  ridiculous  position  of 
asserting  that  they  had  the  right  to  try  a  person 
on  the  charge  of  violating  the  provisions  of  the 
Roman  law  of  treason,  enacted  under  the  author- 
ity of  Augustus.  It  does  not  seem  possible  that 
any  one  could  argue  seriously  that  the  Romans 
permitted  the  Sanhedrin,  or  any  other  native  pro- 
vincial court,  to  try  cases  arising  under  one  of 
their  most  important  and  vital  acts  of  criminal 
legislation,  when  it  has  been  established  that 
throughout  the  Empire  it  was  the  recognized 
habit  that  all  criminal  cases  should  be  heard  by 
the  governor. 

This  conclusion  is  corroborated  also  by  the 
nature  of  the  punishment  which  was  inflicted. 
The  Jews  never  crucified  for  any  offense,  but  put 
to  death  in  other  ways.  The  Mosaic  code  pre- 
scribed stoning  as  the  appropriate  penalty  for 
blasphemy:  "And  Jehovah  spake  unto  Moses, 
saying,  Bring  forth  him  that  hath  cursed  without 
the  camp;  and  let  all  that  heard  him  lay  their 
hands  upon  his  head,  and  let  all  the  congregation 
stone  him.  And  thou  shalt  speak  unto  the  children 
of  Israel,  saying,  Whosoever  curseth  his  God 


CRIMINAL  CHARGE  AGAINST  JESUS  213 

shall  bear  his  sin.  And  he  that  hath  blasphemed 
the  name  of  Jehovah,  he  shall  surely  be  put  to 
death;  all  the  congregation  shall  surely  stone 
him."2  It  is  incredible  that  the  courts  of  law  in 
any  civilized  nation  should  be  so  ordered  that  one 
system  of  jurisprudence  should  define  a  crime, 
prescribe  the  criminal  procedure,  and  pronounce 
sentence,  while  another  system  should  be  super- 
imposed upon  the  first,  should  prescribe  the 
penalty  for  the  crime,  and  should  inflict  the  pun- 
ishment when  sentence  has  been  pronounced  by 
the  first  court. 

Jesus  was  not  guilty  of  blasphemy,  and  no 
Jewish  court  could  fairly  have  pronounced  him 
guilty.  The  passage  just  cited  from  Leviticus 
uses  two  phrases  to  describe  one  who  had  com- 
mitted this  crime,  "whosoever  curseth  his  God," 
and  "he  that  hath  blasphemed  the  name  of 
Jehovah."  The  strictness  with  which  these 
phrases  were  interpreted  in  the  courts  is  shown 
by  the  cautious  words  of  the  Talmud:  "The 
blasphemer.  He  is  guilty  only  if  he  pronounces 
the  name  of  God  literally."3  But  the  word 
"blasphemy,"  or  at  least  the  Greek  word 
(/SXaox^Tj/Aia)  which  translates  it,  was  frequently 
used  rather  loosely  to  denote  abusive  language, 
and  quite  irrespective  of  the  persons  against 
whom  it  was  directed.  Jesus  himself  used  it  in 

2  Lev.  XXIV,  13-16. 

3  Mishna,  Sank.  7,  5. 


214          THE  PROSECUTION  OF  JESUS 

this  manner,  of  abusive  language  directed  against 
others  rather  than  against  God.  Thus  he  says: 
"Every  sin  and  blasphemy  shall  be  forgiven  unto 
men;  but  the  blasphemy  against  the  Spirit  shall 
not  be  forgiven."4  Then  Jesus  shows  what  the 
technical  use  of  the  word  really  was,  by  adding: 
"But  whosoever  shall  speak  against  the  Holy 
Spirit,  it  shall  not  be  forgiven  him,  neither  in  this 
world,  nor  in  that  which  is  to  come." 

On  two  occasions  prior  to  the  trial  Jesus  was 
said  to  be  guilty  of  blasphemy.  The  first  occa- 
sion was  when  he  healed  the  man  who  was  sick 
of  the  palsy.  Jesus  addressed  the  man  in  these 
words:  "Son,  be  of  good  cheer;  thy  sins  are  for- 
given." But  those  who  heard  the  words  of  Jesus 
considered  that  he  was  uttering  a  blasphemous 
statement:  "And  behold,  certain  of  the  scribes 
said  within  themselves,  This  man  blasphemeth."5 
The  blasphemy  consisted  in  saying  things  which 
no  mortal  had  the  right  to  say  upon  his  own 
authority.  But  it  could  not  be  construed  into 
blasphemy  in  the  legal  sense,  for  the  statement 
contained  nothing  derogatory  of  God.  The  sec- 
ond occasion  was  at  the  time  of  the  feast  of  the 
dedication  in  Jerusalem,  when  certain  Jews 
asked  Jesus  whether  he  was  the  Christ.  They 
requested  a  plain  and  straightforward  answer, 
but  got  a  response  that  was  dark  and  difficult  to 

*Mt.  XII,  31;  cp.  Mk.  Ill,  28-29. 
»Mt.  IX,  3;  Mk.  II,  7;  Lk.  V,  91. 


CRIMINAL  CHARGE  AGAINST  JESUS  215 

comprehend.  In  his  reply,  however,  Jesus  said: 
"I  and  the  Father  are  one."  The  Jews  were  on 
the  point  of  stoning  him,  when  he  stopped  them 
by  a  question  as  to  their  reason  for  casting  stones 
at  him.  They  replied:  "For  a  good  work  we 
stone  thee  not,  but  for  blasphemy."  Jesus  de- 
fended himself  by  a  remarkable  series  of  ques- 
tions :  "Is  it  not  written  in  your  law,  I  said,  Ye 
are  gods?  If  he  called  them  gods,  unto  whom 
the  word  of  God  came  (and  the  scripture  cannot 
be  broken),  say  ye  of  him,  whom  the  Father 
sanctified  and  sent  into  the  world,  Thou  blas- 
phemest;  because  I  said,  I  am  the  Son  of  God?"6 
The  words  of  Jesus  in  this  whole  scene  are  so 
obscure  that  it  is  difficult  to  believe  that  John  has 
quoted  them  correctly.  But  it  still  remains  clear 
that  John  believed  that  Jesus  claimed  to  be  the 
Son  of  God,  and  that  this  claim  was  not 
blasphemy. 

When  the  high  priest  asked  Jesus  in  the  pres- 
ence of  the  Sanhedrin  whether  he  was  the  Son 
of  God,  he  acknowledged  it,  according  to  the  ac- 
count of  Mark,  fully  and  explicitly,  without  the 
slightest  hesitation  or  reservation.  The  other 
Gospels  record  Jesus  as  replying:  "Thou 
sayest,"  but  this  is  usually  explained  as  equivalent 
to  an  affirmative,  and  it  is  evident  that  the  Sanhe- 
drin so  understood  the  answer,  for  with  this  reply 
they  pronounced  Jesus  worthy  of  death.  On  sev- 

«Jn.  X,  30-36. 


216         THE  PROSECUTION  OF  JESUS 

eral  earlier  occasions  he  had  described  himself  as 
the  Son  of  God.  Matthew  represents  him  as 
saying  in  one  of  his  addresses  to  the  people :  "All 
things  have  been  delivered  unto  me  of  my  Father ; 
and  no  one  knoweth  the  Son,  save  the  Father; 
neither  doth  any  know  the  Father,  save  the  Son, 
and  he  to  whomsoever  the  Son  willeth  to  reveal 
him."7  Much  the  same  form  of  statement  is  re- 
lated by  Mark:  "Heaven  and  earth  shall  pass 
away;  but  my  words  shall  not  pass  away.  But 
of  that  day  or  that  hour  knoweth  no  one,  not  even 
the  angels  in  heaven,  neither  the  Son,  but  the 
Father."8  While  the  actual  phrase  "Son  of  God" 
is  not  used  in  these  two  places,  Jesus  puts  himself 
on  a  much  higher  level  than  the  ordinary  man, 
who  might  claim  sonship  of  God.  Nothing  sim- 
ilar occurs  in  Luke,  but  there  are  four  such  pas- 
sages in  John,  all  very  explicit.  "The  hour 
cometh,  and  now  is,  when  the  dead  shall  hear  the 
voice  of  the  Son  of  God;  and  they  that  hear  shall 
live."9  "Dost  thou  believe  on  the  Son  of  God? 
He  answered  and  said,  And  who  is  he,  Lord,  that 
I  may  believe  on  him?  Jesus  said  unto  him,  Thou 
hast  both  seen  him,  and  he  it  is  that  speaketh 
with  thee."10  "This  sickness  is  not  unto  death, 
but  for  the  glory  of  God,  that  the  Son  of  God 
may  be  glorified  thereby."11  The  fourth  has  al- 

7  Mt.  XI,  27. 

s  Mk.  XIII,  31-32. 

a  Jn.  V,  25. 

10  jn.  IX,  35-37. 

11  Jn.  XI,  4. 


CRIMINAL  CHARGE  AGAINST  JESUS  217 

ready  been  cited,  in  which  Jesus  claims  that  the 
application  of  the  phrase  to  himself  does  not  con- 
stitute blasphemy. 

Five  times,  it  is  recorded,  Jesus  was  addressed 
as  the  Son  of  God,  and  did  not  refuse  acceptance 
of  the  title.  Thus,  Satan  called  him  by  this  name 
at  the  time  of  the  temptation  in  the  wilderness  ;12 
the  demons  cast  out  from  the  sick  at  Capernaum 
proclaimed  that  he  was  the  Son  of  God;18  the 
unclean  spirit  in  the  man  of  Gerasa  so  addressed 
him  ;14  the  disciples,  after  Jesus  had  walked  upon 
the  water,  expressed  the  same  belief;15  and  Peter, 
when  he  was  asked  who  Jesus  really  was,  avowed 
that  he  was  the  Son  of  God.16  On  three  other 
occasions  he  was  proclaimed  by  supernatural 
beings  as  the  Son  of  God.  At  the  annunciation 
the  angel  said  to  Mary:  "That  which  is  to  be 
born  shall  be  called  holy,  the  Son  of  God."1T 
When  Jesus  was  baptized  by  John,  "a  voice  came 
out  of  the  heavens,  Thou  art  my  beloved  Son,  in 
thee  I  am  well  pleased."18  And  finally,  at  the 
transfiguration  "there  came  a  voice  out  of  the 
cloud,  This  is  my  beloved  Son;  hear  ye  him."19 

12  Mt.  IV,  3;  Lk.  IV,  3. 

13  Lk.  IV,  41. 

14  Lk.  VIII,  28. 
IB  Mt.  XIV,  33. 
i«  Mt.  XVI,  16. 
IT  Lk.  I,  35. 

is  Mk.  I,  11. 
ie  Mk.  IX,  7. 


218         THE  PROSECUTION  OF  JESUS 

Putting  aside  the  serious  question  of  the  histori- 
city of  all  these  events,  or  sayings,  it  is  curious 
that  Matthew  and  Mark,  who  only  sparingly  put 
in  the  mouth  of  Jesus  himself  the  claim  to  being 
the  Son  of  God,  yet  do  report  that  demons,  or 
angels,  or  other  supernatural  beings  several  times 
used  such  an  expression.  And  it  is  still  more  note- 
worthy that  Luke  reports  even  more  of  these 
incidents,  although  he  not  once  assigns  the  claim 
to  Jesus.  This  fact  shows  at  least  the  currency 
of  the  attribution,  and  the  four  passages  in  John 
would  seem  to  prove  that  Jesus  himself  laid  claim 
to  the  title. 

We  are  not  concerned  with  the  question  of  the 
meaning  which  Jesus  himself  attached  to  the  title 
"Son  of  God";  our  only  problem  at  present  is 
a  determination  of  the  sense  which  those  who 
heard  it  assigned  to  the  phrase,  or  rather,  the 
sense  in  which  the  Jews  understood  it  when  they 
received  the  report  that  Jesus  claimed  to  be  the 
Son  of  God.  It  seems  clear  that  Peter  believed 
this  title  to  be  synonymous  with  the  term 
"Christ,"  for  he  said:  "Thou  art  the  Christ,  the 
Son  of  the  living  God."  The  same  identity  of 
meaning  is  implied  in  the  words  of  the  demons 
driven  out  at  Capernaum:  "Thou  art  the  Son 
of  God.  And  rebuking  them,  he  suffered  them 
not  to  speak,  because  they  knew  that  he  was  the 
Christ."  That  the  high  priest  accepted  the  iden- 
tity of  significance  in  the  two  titles  is  obvious 


CRIMINAL  CHARGE  AGAINST  JESUS  219 

from  his  coupling  them  together  in  his  adjuration 
during  the  hearing  of  Jesus  by  the  Sanhedrin. 

The  word  "Christ"  is  merely  a  Greek  transla- 
tion of  the  Hebrew  "Messiah,"  so  that  one  would 
be  justified  in  regarding  the  terms  Christ  and 
Son  of  God,  so  frequently  occurring  in  the  New 
Testament,  as  synonymous  with  the  title  Messiah, 
especially  as  this  word  is  used  in  the  somewhat 
contemporary  apocalyptic  literature  of  the  Jews. 
There  was  no  universal  agreement  among  the 
Jews  at  the  beginning  of  the  Christian  era  con- 
cerning the  exact  nature  of  the  changes  to  be 
effected  by  the  coming  of  the  Messiah.  The 
Pharisees  had  turned  more  and  more  to  the  antici- 
pation of  the  establishment  of  the  righteousness 
of  the  law  upon  the  earth  in  God's  own  good 
time.  They  were  content,  therefore,  to  bear  the 
yoke  of  Rome  until  God  should  decree  otherwise 
for  his  people,  and  they  looked  with  great  dis- 
favor upon  any  attempt  to  rebel  against  Roman 
authority  in  the  land,  unless  indeed  it  could  be 
shown  to  be  fairly  sure  of  success.  The  Sad- 
ducees,  a  prosperous  and  conforming  sect,  had 
become  averse  even  to  the  thought  of  alteration 
in  present  conditions.  But  to  the  mass  of  the 
common  people  messianic  hope  and  expectation 
involved  the  establishment  of  a  Jewish  kingdom, 
independent  and  glorious,  to  whose  king,  the 
Messiah,  all  nations  should  do  reverence.  The 
kingdom  was  to  be  a  kingdom  of  righteousness, 


220          THE  PROSECUTION  OF  JESUS 

and  the  enemies  of  God  were  to  be  humiliated 
and  punished.  The  Messiah  was  "the  annointed 
one"  of  God,  and  would,  therefore,  be  prophet, 
priest  and  king.  He  was  to  be  the  "beloved  Son 
of  God,"  just  as  David  was,  and  just  as  the 
prophets  foretold  that  others  of  their  kings 
would  be. 

Moreover  at  this  time  hope  was  high  that  the 
coming  of  the  Messiah  was  near,  and  the  people 
were  looking  for  signs  of  his  arrival.  So  we  read 
that  false  Christs,  or  false  Messiahs,  arose  and  led 
the  people  into  abortive  revolutions.  For  this 
reason  a  new  leader,  calling  himself  the  Messiah, 
the  Son  of  God,  teaching  among  the  common 
people,  applying  to  himself  the  messianic 
prophecies  of  Zechariah,  Daniel  and  the  Psalms, 
and  gradually  winning  favor  in  the  nation,  would 
fall  under  suspicion  by  those  who  feared  further 
useless  revolts.  These  had  already  expressed 
their  fear  that  "the  Romans  will  come  and  take 
away  both  our  place  and  our  nation."  Even  the 
preaching  of  John  the  Baptist  was  thought  likely 
to  cause  not  only  a  social  but  a  political  revolu- 
tion.20 The  Messiah  he  predicted  would  naturally 
do  the  same.  Many  who  heard  Jesus  believed 
that  he  intended  to  establish  a  kingdom.  His 
immediate  disciples  thought  his  teaching  and  his 
healing  were  delaying  the  beginning  of  his  real 
task,  the  foundation  of  the  righteousness  of  the 

20  Jos.  Ant.  XVIII,  118. 


CRIMINAL  CHARGE  AGAINST  JESUS  221 

law  through  the  authority  of  a  temporal  empire. 
So  the  two  brothers,  James  and  John,  wished  to 
sit,  one  on  the  right  hand  and  one  on  the  left 
hand,  in  the  kingdom  to  be  inaugurated.21  Those 
who  shouted  "Hosanna"  at  the  triumphal  entry 
into  Jerusalem  expected  the  immediate  coming 
of  the  kingdom  of  the  nation,  independent  of 
Rome  and  favored  of  God. 

Because  the  Messiah  was  to  combine  the  func- 
tions of  both  spiritual  and  temporal  leader,  it  was 
important  that  there  should  be  no  mistake  when 
he  did  come.    Influential  Jews  might  think  that 
Jesus  fulfilled  their  expectations  of  a  spiritual 
leader,  but  they  could  not  believe  that  he  would 
satisfy  the  national  ideal  of  the  temporal  king. 
They  knew  that  the  people  had  been  led  astray 
before,  and  they  feared  that  the  same  thing  might 
happen  again.     The  Sanhedrin  might  well  be 
apprehensive  lest  the  nation  would  once  more 
be  plunged  into  futile  revolt,  and  the  hand  of 
Rome  become  still  heavier  upon  them.      They 
gave  attention,  therefore,  to  the  reports  that  were 
being  circulated,   and  to  the  evidence   against 
Jesus  that  was  being  offered  to  them.    Their  in- 
vestigations,  whether  impartial   or  prejudiced, 
persuaded  them  that  Jesus  could  be  convicted  of 
heresy  and  of  treason  against  the  Roman  Empire. 
But,  although  Jesus  claimed  to  be  the  Christ, 
or  the  Messiah,  or  the  Son  of  God,  he  did  not 

21  Mt.  XX,  21;  Mk.  X,  37. 


222          THE  PROSECUTION  OF  JESUS 

thereby  make  himself  liable  to  a  charge  of  blas- 
phemy. He  did  not  disobey  the  command: 
"Thou  shalt  not  take  the  name  of  the  Lord  thy 
God  in  vain."  Nor  did  he  use  the  "four  letters" 
in  the  name  Jehovah,  nor  speak  of  God  in  a  de- 
rogatory manner.  Unless  he  had  done  these 
things  he  could  not  be  considered  guilty  of  blas- 
phemy. On  all  the  occasions  when  he  was  said 
to  be  guilty  of  blasphemy,  it  must  be  understood 
that  the  word  was  intended  to  involve  only  the 
use  of  extraordinary,  or  shocking,  language.  In 
this  sense  also  the  word  occurs  in  the  report  of 
the  language  used  by  the  Corinthians  against 
Paul.22  It  was  with  this  same  meaning  that  the 
high  priest  used  the  word  blasphemy  in  com- 
menting on  the  utterance  of  Jesus  before  the 
Sanhedrin.  Moreover,  it  is  extremely  doubtful 
whether  the  Sanhedrin  had  jurisdiction  under  the 
Mosaic  code  in  cases  of  blasphemy.  The  Mishna 
defines  the  extent  of  the  powers  of  the  Great 
Sanhedrin  in  the  following  words:  "The  judg- 
ment of  the  seventy-one  is  besought  when  the 
affair  concerns  a  whole  tribe,  or  is  regarding  a 
false  prophet  or  the  high  priest;  when  it  is  a 
question  whether  war  shall  be  declared  or  not; 
when  it  has  for  its  object  the  enlargement  of 
Jerusalem  or  its  suburbs;  whether  tribunals  of 
twenty-three  shall  be  instituted  in  the  provinces, 
or  to  declare  that  a  town  has  become  defiled,  and 

22  Acts,  XVIII,  6. 


CRIMINAL  CHARGE  AGAINST  JESUS  223 

to  place  it  under  ban  of  excommunication."28 
Sitting  in  judgment  in  cases  of  blasphemy  is  not 
mentioned  as  one  of  the  functions  of  the  Sanhe- 
drin  ;  the  only  ecclesiastical  crime  in  the  enumera- 
tion is  "false  prophecy." 

It  has  been  said  in  an  earlier  chapter  that  the 
part  played  by  the  Jews  in  bringing  about  the 
crucifixion  caused  the  Christians  to  hold  bitter 
feelings  against  them.  This  appears  in  the  Gos- 
pels, in  the  preaching  of  the  apostles  and  of 
Stephen,  and  in  the  writings  of  Paul.  Evidently 
the  Jews  soon  felt  that  it  was  necessary  to  defend 
themselves  against  the  charge  of  injustice,  and 
many  passages  in  the  Talmud  give  convincing 
proof  of  this  desire.  Whether  the  statements 
contained  in  them  are  historically  accurate  or  not 
is  immaterial  for  the  present  purpose.  The  es- 
sential point  to  discover  is  the  nature  of  the  ac- 
cusation which  the  writers  of  the  Talmud  thought 
could  have  been  brought  against  Jesus.  In  all 
of  these  passages  it  is  noteworthy  that  Jesus  is 
said  to  have  been  guilty  of  "false  prophecy,"  or 
of  being  a  "deceiver,"  but  nowhere  is  it  hinted 
that  he  was  guilty  of  blasphemy.  Thus,  in  a 
commentary  on  a  section  of  the  treatise  dealing 
with  the  functions  of  the  Sanhedrin:  "And  a 
teacher  has  said,  'Jesus  the  Nazarene  practised 
magic  and  led  astray  and  deceived  Israel.'  "24 


,  Sank.  1,  5. 
2*J3a6.  Gemara,  Sank.  107b. 


224          THE  PROSECUTION  OF  JESUS 

Another  passage  gives  the  treatment  accorded 
one  Ben  Stada,  under  which  name  modern 
scholars  believe  Jesus  was  often  designated  by 
Talmudic  writers:  "In  regard  to  all  who  are 
worthy  of  death  according  to  the  Torah,  they  do 
not  use  concealment  against  them,  except  in  the 
case  of  the  deceiver.  How  do  they  deal  with 
him?  They  put  two  disciples  of  the  wise  in  the 
inner  chamber,  and  he  sits  in  the  outer  chamber, 
and  they  light  the  lamp  so  that  they  shall  see 
him  and  hear  his  voice.  And  this  they  did  to 
Ben  Stada  in  Lud ;  two  disciples  of  the  wise  were 
chosen  for  him,  and  they  [brought  him  to  the 
Beth  Din],  and  stoned  him."25  Several  things 
in  this  passage  obviously  lack  historical  accuracy, 
the  most  peculiar  of  which  is  the  statement  that 
Jesus  was  punished  in  Lydda  instead  of  in  Jeru- 
salem, and  by  stoning  instead  of  by  crucifixion. 
The  whole  subject  of  the  claims  of  Jesus  is 
treated  in  a  very  general  way  in  the  Jerusalem 
Taanith,  from  which  it  is  quite  clear  that  the 
words  of  Jesus  would  not  have  been  considered 
ground  for  a  criminal  accusation  of  blasphemy: 
"R.  Abahn  said,  If  a  man  say  to  thee  'I  am  God,' 
he  is  a  liar;  if  [he  says  'I  am]  the  Son  of  Man,' 
in  the  end  people  will  laugh  at  him;  if  [he  says] 
'I  will  go  up  to  heaven,'  he  saith,  but  shall  not 
perform."26  There  is  here  no  explicit  mention 

25  T.  Sank.  10,  11;  cp.  /.  Sank.  7,  16;  Bab.  Oemara,  Sank.  67a. 
2«/.  Taan.  65b. 


CRIMINAL  CHARGE  AGAINST  JESUS  225 

of  Jesus,  but  it  cannot  be  doubted  that  the  writer 
had  in  mind  the  sayings  attributed  to  him.  There 
is  no  thought  that  the  words  could  be  designated 
blasphemy,  nor  would  they  have  been  noticed 
publicly,  were  it  not  for  the  influence  they  had 
upon  others.  That  is  to  say,  the  offense  consisted 
in  his  preaching,  and  in  the  fact  that  the  people 
were  led  thereby  from  their  accepted  form  of 
worship.  The  crime  of  blasphemy  is  committed 
by  the  mere  utterance  of  certain  words,  while 
"deception,"  or  "false  prophecy,"  consists  in 
teaching  the  people  some  heretical  doctrine.  This 
is  included  in  the  charge  contained  in  the  indict- 
ment formulated  by  Luke :  "We  found  this  man 
perverting  our  nation." 

The  full  form  of  the  indictment  presented  by 
the  Sanhedrin  to  Pilate  is  found  only  in  Luke, 
where  it  is  given  in  the  three  clauses :  "We  found 
this  man  perverting  our  nation,  and  forbidding 
to  give  tribute  to  Caesar,  and  saying  that  he  him- 
self is  Christ  a  king."27  Luke  does  not  state  that 
the  indictment  was  written,  and  many  modern 
writers  upon  the  trial,  arguing  from  Luke's  si- 
lence, have  assumed  that  it  was  presented  orally. 
This  is  regarded  as  another  serious  irregularity 
in  the  proceedings.  But  such  an  assumption  is 
completely  out  of  harmony  with  the  canons  of 
historical  criticism,  for  it  should  rather  be  as- 
sumed that  everything  commonly  required  was 
27  Lk.  xxin,  2. 


226          THE  PROSECUTION  OF  JESUS 

actually  done,  unless  the  record  proves  the  con- 
trary. It  is  proper,  and  indeed  necessary,  to 
maintain  that  the  indictment  was  written,  since 
no  one  of  the  Gospels  declares  that  it  was  not 
written.  Both  the  Hebrew  and  the  Roman  sys- 
tem demanded  a  written  indictment,  and  yet  in 
the  accounts  of  Roman  trials  we  are  rarely  told 
that  a  written  indictment  was  presented.  That 
may  safely  he  assumed,  just  as  we  do  to-day  both 
in  official  records  and  in  the  newspapers.  Other- 
wise we  should  be  obliged  to  hold  that  Luke  has 
made  up  an  indictment,  for  tradition  in  the 
church  would  not  preserve  the  charge  in  the  lan- 
guage used  by  Luke.  The  indictment  he  gives 
is  in  strict  accord  with  the  forms  of  such  legal 
documents  found  in  the  Digest  of  Justinian  and 
elsewhere. 

There  are  two  main  thoughts  implicit  in  the 
indictment.  The  first  part,  "We  have  found  this 
man  perverting  our  nation,"  has  distinct  refer- 
ence to  the  ecclesiastical  charge  of  deception,  or 
false  prophecy.  The  second  part,  "and  forbid- 
ding to  give  tribute  to  Caesar,  and  saying  that 
he  himself  is  Christ  a  king,"  is  a  charge  of  treason 
based  upon  the  Roman  penal  code.  It  may  be 
questioned  whether  the  two  sections  are  so  funda- 
mentally different  that  they  must  be  regarded 
as  implying  two  distinct  crimes.  Modern  prac- 
tice does  not  permit  including  more  than  one 
crime  in  a  single  indictment,  but  that  would  not 


CRIMINAL  CHARGE  AGAINST  JESUS  227 

offend  Roman  sense  of  propriety.  In  Rome, 
where  a  separate  court  existed  for  the  hearing  of 
each  kind  of  crime,  the  indictments  were  normally 
kept  simple,  but  even  there  instances  might  be 
cited  of  a  combination  of  two  or  more  charges. 
In  the  provinces,  where  all  charges  were  heard 
by  the  same  judge,  it  is  quite  conceivable  that 
a  complex  indictment  was  no  unusual  thing.  But 
the  great  peculiarity  of  the  records  of  the  trial 
of  Jesus  is  that  the  charge  of  treason  is  not  once 
mentioned  in  connection  with  the  hearing  by  the 
Sanhedrin,  while  only  Luke  mentions  specifically 
the  ecclesiastical  charge  in  the  account  of  the 
hearing  before  Pilate. 

This  silence  on  the  part  of  three  of  the  four 
evangelists  leads  to  an  apparent  discrepancy  in 
the  proceedings  in  the  two  courts,  which  is  com- 
monly explained  as  due  to  a  wilful  and  disingenu- 
ous attempt  by  the  Sanhedrin  to  shift  their 
ground  when  the  case  came  before  Pilate.  Those 
who  maintain  the  theory  of  two  trials  insist  that 
Jesus  was  tried  by  the  Sanhedrin  merely  on  an 
ecclesiastical  charge.  They  further  hold  that  the 
Sanhedrin  knew  that  such  a  charge  would  make 
little  impression  on  Pilate,  and  consequently, 
after  having  convicted  Jesus  of  blasphemy,  they 
maliciously  changed  their  indictment  to  one  of 
treason,  and  suppressed  the  ecclesiastical  charge. 
These  scholars  claim  that  the  Sanhedrin  delib- 
erately made  up  the  second  charge,  by  falsely 


228          THE  PROSECUTION  OF  JESUS 

interpreting  the  admission  of  Jesus  that  he  was 
the  Messiah  into  a  confession  of  treason  against 
the  Roman  Empire.  But  this  explanation  is 
altogether  too  labored,  and  is  incompatible  with 
several  circumstances.  It  flatly  contradicts  the 
narrative  of  Luke,  whose  phrasing  of  the  indict- 
ment distinctly  implies  that  the  ecclesiastical 
charge  was  brought  before  Pilate.  Luke  says 
furthermore  that  the  words  of  the  indictment 
were  supplemented  by  the  charge:  "He  stirreth 
up  the  people,  teaching  throughout  all  Judea, 
and  beginning  from  Galilee  even  unto  this  place." 
This  definite  accusation  has  particular  reference 
to  the  charge  of  heresy,  but  is  only  indirectly 
appropriate  to  that  of  treason.  There  is  also  a 
reminiscence  of  the  charge  of  false  prophecy  in 
the  narrative  of  John,  in  which  Pilate  says  to  the 
accusers  of  Jesus:  "Take  him  yourselves,  and 
judge  him  according  to  your  law."28  It  would  be 
absurd  for  Pilate  to  offer  to  the  Jews  the  privi- 
lege of  hearing  a  case  of  treason,  so  we  must  con- 
clude that  he  had  in  mind  the  other  phase  of  the 
accusation,  and  this  forces  us  to  maintain  that 
this  charge  had  also  been  presented  to  him. 

A  rational  and  adequate  explanation  of  the 
seeming  discrepancy  consists  in  the  fact  that  the 
evangelists  realized  that  in  the  eyes  of  the  Jews 
the  vital  accusation  against  Jesus  was  that  of 
heresy,  while  to  the  Roman  the  important  point 

zs  Jn.  XVIII,  31. 


CRIMINAL  CHARGE  AGAINST  JESUS  329 

was  that  he  was  charged  with  treason.  The 
evangelists  wished  to  show  that  the  Jews  had  re- 
jected their  own  Messiah,  and  desired  to  empha- 
size the  circumstance  that  they  had  denounced 
Jesus  on  the  ground  of  heresy.  It  is  indeed  prob- 
able that  the  accusation  of  treason  received  only 
scant  attention  from  the  Sanhedrin.  The  proof  of 
heresy  before  them  would  be  evidence  of  treason 
also.  But  in  the  Roman  court  Pilate  naturally 
inquired  more  particularly  into  the  other  phase 
of  the  indictment,  for  he  would  neither  under- 
stand the  nature  of  the  heresy  with  which  Jesus 
was  accused,  nor  would  he  be  interested  in  it. 
During  the  years  when  the  Gospels  were  being 
written  the  church  was  persecuted  by  the  Jews 
on  the  ground  of  heresy.  It  would  accordingly 
be  expected  that  the  Christian  writers  would  pay 
attention  only  to  the  ecclesiastical  part  of  the 
charge  when  giving  an  account  of  the  conduct  of 
the  Sanhedrin. 

In  a  general  way  the  same  charge  of  heresy 
is  made  several  times  again  in  the  New  Testa- 
ment. In  the  complaint  made  against  Stephen 
it  is  said:  "for  we  have  heard  him  say,  that  this 
Jesus  of  Nazareth  shall  destroy  this  place,  and 
shall  change  the  customs  which  Moses  delivered 
unto  us."29  This  is  equivalent  to  "perverting  our 
nation"  in  Luke's  indictment.  In  Philippi  the 
following  was  said  of  Paul  and  Silas:  "These 

2»  Acts,  VI,  14. 


230          THE  PROSECUTION  OF  JESUS 

men,  being  Jews,  do  exceedingly  trouble  our  city, 
and  set  forth  customs  which  it  is  not  lawful  for 
us  to  receive,  or  to  observe,  being  Romans."30  A 
distinct  charge  of  heresy  was  brought  against 
Paul  in  the  Roman  court  of  Gallio  at  Corinth: 
"This  man  persuadeth  men  to  worship  God  con- 
trary to  the  law."31  The  manner  in  which  an 
infringement  of  the  Mosaic  law  could  become 
combined  with  a  criminal  offense  in  the  eyes  of 
the  Romans  is  seen  in  the  suit  against  Paul  and 
Silas  in  Thessalonica :  "These  that  have  turned 
the  world  upside  down  are  come  hither  also; 
whom  Jason  hath  received :  and  these  all  act  con- 
trary to  the  decrees  of  Caesar,  saying  that  there 
is  another  king,  one  Jesus."32  Thus,  "turning 
the  world  upside  down,"  or  endeavoring  to 
"change  the  customs"  of  Moses,  had  a  tendency 
to  cause  dissension  among  the  people,  and  this 
led  to  serious  disturbance  of  the  peace.  The  ex- 
treme form  of  the  new  teaching  was  in  the  recog- 
nition of  the  Messiah,  or  king,  who  acted 
"contrary  to  the  decrees  of  Caesar"  when  he 
merely  admitted  himself  to  be  the  Messiah.  For 
all  these  reasons  the  Jewish  court  must  be  exon- 
erated from  the  accusation  thait  they  falsified 
their  indictment.  It  must  be  maintained  that 
both  charges  were  presented  in  both  courts. 

so  Acts,  XVI,  20-21. 
si  Acts,  XVIII,  13. 
s,  XVII,  6-7. 


CRIMINAL  CHARGE  AGAINST  JESUS    231 

The  treasonable  conduct  of  which  complaint 
was  made  against  Jesus  requires  definition.  The 
Constitution  of  the  United  States  treats  of  this 
crime  in  the  following  words :  "Treason  against 
the  United  States  shall  consist  only  in  levying 
war  against  them,  or  in  adhering  to  their  enemies, 
giving  them  aid  and  comfort.  No  person  shall 
be  convicted  of  treason  unless  on  the  testimony 
of  two  witnesses  to  the  same  overt  act,  or  on  con- 
fession in  open  court."  The  definition  includes 
the  necessity  for  the  committing  of  some  overt 
act;  mere  words  do  not  constitute  the  crime  of 
treason.  The  Supreme  Court  has  decided  that 
there  must  be  an  assemblage  of  men  with  treason- 
able intent,  and  that  these  must  proceed  to  some 
overt  act,  before  treason  can  be  urged  against 
them. 

Under  the  common  law  the  definition  of  trea- 
son was  much  broader,  and  the  farther  back  one 
goes  in  tracing  the  history  of  legislation,  the  more 
numerous  one  finds  are  the  acts  which  may 
fall  within  the  limits  of  treasonable  conduct. 
Throughout  the  Roman  Empire  during  the 
period  of  the  life  of  Christ  the  law  on  the  subject 
of  treason  was  one  proposed  by  Augustus,  and 
known  as  the  Julian  Law  of  Treason.  All  the 
various  acts  included  in  the  scope  of  this  law  are 
specified  in  Justinian's  Digest,  but  here  it  is 
necessary  to  cite  only  those  clauses  that  can  be 
considered  applicable  to  the  acts  charged  against 


232          THE  PROSECUTION  OF  JESUS 

Jesus.  "The  accusation  of  treason  is  made  on 
the  ground  that  the  act  done  is  inimical  to  the 
welfare  of  the  Roman  people,  or  is  contrary  to 
their  safety.  .  .  .  The  Julian  law  of  treason  de- 
clares that  he  shall  be  held  who  has  done  an  injury 
to  the  name  of  the  Roman  people.  .  .  .  He  shall 
be  held  guilty  by  whose  acts  friends  of  the  Roman 
people  shall  become  enemies,  or  who  shall  mali- 
ciously bring  it  to  pass  that  the  king  of  a  foreign 
nation  shall  be  less  obedient  to  the  Romans.  .  .  . 
The  private  citizen  shall  be  held  who  wilfully  and 
maliciously  assumes  the  functions  of  an  official."33 
The  penalty  following  conviction  for  treason 
was  death.  Perhaps  the  most  famous  instance  of 
capital  punishment  for  treason  was  that  of  the 
associates  of  Catiline  for  insurrection  during  the 
consulship  of  Cicero.  For  those  persons  who 
were  of  lower  position  in  the  state,  and  for  those 
who  did  not  possess  the  Roman  citizenship,  the 
less  humane  forms  of  execution  were  practised. 
Paulus  says  that  the  ordinary  penalties  were 
burning  and  being  thrown  to  the  beasts.34  The 
second  of  these  means,  of  course,  in  the  amphi- 
theatres or  circuses,  to  provide  a  spectacle  for 
the  people.  But  in  the  provinces  the  old  penalty 
of  crucifixion  still  obtained,  and  was  continued 
long  after  the  time  of  Christ.  On  this  point 
Paulus  says :  "Fomentors  of  insurrection  or  riot 

S3  Digest,  XLVIII,  4,  1.  2.  3.  4. 
»*  Paulus,  Sent.  V,  29,  1. 


CRIMINAL  CHARGE  AGAINST  JESUS    233 

and  agitators  of  the  people  are  crucified  or  cast 
to  the  beasts  or  banished  according  to  their 
rank."35  It  should  also  be  noted  that  the  sentence 
of  death  was  normally  carried  into  effect  imme- 
diately upon  conviction.  For  instance,  as  soon 
as  the  conspirators  banded  together  with  Catiline 
were  pronounced  guilty  by  the  Senate,  they  were 
led  away  and  put  to  death.  Tacitus  tells  that 
Clutorius  Priscus  after  condemnation  "was  taken 
to  prison  and  at  once  suffered  the  penalty."36 
The  emperor  Gratianus  finally  laid  it  down  as  a 
principle  that  execution  should  not  be  delayed: 
"Concerning  those  who  are  in  prison,  we  decree 
that  punishment  shall  follow  swiftly  after  con- 
viction."37 This  point  will  be  found  of  impor- 
tance in  connection  with  the  discussion  as  to  the 
historical  accuracy  of  the  story  of  the  pardoning 
of  Barabbas. 

33  Paulus,  Sent.  V,  22,  1  =  Digest,  XLVIII,  19,  38,  2. 

se  Ann.  Ill,  51. 

37  Just.  Cod.  IX,  4,  5. 


CHAPTER  IX 

THE  TRIAL  IN  THE  ROMAN  COURT 

The  accounts  of  the  trial  of  Jesus  before  Pilate 
as  contained  in  the  four  Gospels  do  not  offer  by 
any  means  the  same  kind  of  difficulty  that  was 
encountered  in  the  examination  of  the  descrip- 
tions of  the  hearing  by  the  Sanhedrin.  In  the 
narratives  of  the  events  of  the  night  and  early 
morning  it  is  extremely  hard  to  reconcile  the  ac- 
counts of  the  evangelists,  and  if  an  attempt  is 
made  to  gather  them  all  together  into  one  har- 
monious and  consistent  piece  of  narration,  one 
meets  with  contradictions  that  seem  impossible 
to  explain.  Nor  is  any  one  narrative  taken  by 
itself  quite  convincing.  The  records  of  the  trial 
before  Pilate,  on  the  contrary,  can  generally  be 
accepted  even  to  minute  details  as  quite  in  accord 
with  ordinary  procedure.  But  the  most  obvious 
fact  connected  with  these  accounts  is  that  no  one 
of  them  is  complete  in  itself.  Occasionally  they 
seem  to  require  a  slightly  different  arrangement, 
but,  while  much  could  have  been  added  with 
profit  to  our  understanding  of  the  whole  course 
of  events,  it  is  quite  unnecessary  to  subtract  any 

234 


TRIAL  IN  THE  ROMAN  COURT         235 

essential  part  of  the  narrative,  on  the  ground 
that  it  is  inherently,  or  palpably,  improbable. 
Hence  one's  attitude  toward  the  records  of  the 
two  hearings  must  be  very  different.  A  connected 
story  of  the  earlier  hearing  cannot  be  gained  by 
inserting  details  out  of  one  account  into  another, 
but,  in  a  reconstruction  of  the  story  of  the  trial 
before  Pilate,  a  combination  of  the  narratives  of 
the  four  Gospels  yields  a  very  satisfactory  result. 
And  yet  even  this  leaves  certain  things  untreated, 
the  most  important  of  which  is  that  no  one  of 
the  four  states  that  witnesses  were,  or  were  not, 
summoned  to  give  evidence.  For  this  phase  of 
the  trial  it  becomes  necessary  to  depend  upon  the 
apocryphal  book  of  the  Acts  of  Pilate,  and  to 
endeavor  to  draw  from  it  some  idea  of  the  nature 
of  the  evidence  offered. 

John  does  not  state  who  brought  Jesus  to  the 
tribunal  of  Pilate,  contenting  himself  with  the 
indefinite  "they."1  But  Luke,  immediately  after 
his  account  of  the  meeting  of  the  Sanhedrin  in 
the  morning,  says:  "And  the  whole  company  of 
them  rose  up,  and  brought  him  before  Pilate."2 
This  seems  also  to  be  the  meaning  of  the  parallel 
accounts  of  Matthew  and  Mark,  although  they 
are  less  explicit.3  A  group  of  seventy  Sanhe- 
drists  is  an  extremely  large  prosecuting  body,  but 

1  Jn.  XVIII,  28. 

2  Mi.  XXIII,  1. 

sMt.  XXVII,  3;  Mk.  XV,  1. 


236          THE  PROSECUTION  OF  JESUS 

it  is  not  impossible.  In  criminal  cases  in  Rome 
only  four  persons  were  allowed  as  prosecuting 
attorneys  in  any  one  case,  but  evidence  does  not 
exist  showing  that  this  was  true  also  for  trials  in 
the  provinces.  The  chances  are,  however,  that 
certain  members  of  the  Sanhedrin  were  appointed 
to  conduct  the  case,  while  others  were  present  to 
offer  evidence  against  Jesus. 

The  earliest  hint  of  the  exact  place  in  which 
the  trial  took  place  is  contained  in  a  remark  made 
by  John :  "And  they  themselves  entered  not  into 
the  Praetorium,  that  they  might  not  be  defiled, 
but  might  eat  the  passover."4  There  is  nothing 
improbable  in  this,  but  it  is  rather  quite  to  be 
expected,  provided  one  accept  the  fourteenth  of 
Nisan  as  the  day  on  which  the  trial  occurred. 
Otherwise  the  verse  must  be  rejected  from  John's 
narrative  as  inaccurate.  Possibly  its  very  natu- 
ralness in  its  present  position  in  the  story  is  an 
argument  for  its  accuracy,  and  therefore  for  its 
retention.  Whatever  reason  the  Sanhedrists  had 
for  taking  their  stand  where  they  did,  it  seems 
clear  that  the  initial  part  of  the  proceedings  was 
held  in  the  open  air,  in  the  court  yard  of  the 
palace  of  Pilate.  It  can  scarcely  be  assumed, 
however,  that  Pilate  went  out  deliberately  to 
meet  them  because  they  refused  to  go  within  the 
palace.  Holding  court  in  the  open  would  be 
nothing  strange  to  Pilate,  who  must  have  been 

*Jn.  XVIII,  38. 


TRIAL  IN  THE  ROMAN  COURT         237 

familiar  with  the  custom  in  Rome,  where  criminal 
trials  were  regularly  conducted  in  the  Forum. 
There  is  little  evidence  to  show  where  trials  in 
the  provinces  were  held,  but  Cicero  says  that 
Verres  conducted  cases  openly  in  the  Forum  at 
Syracuse.5  Caesar  draws  especial  attention  to 
the  fact  that  in  one  case  in  Alexandria  he  desired 
privacy,  and  held  the  trial  in  a  house.6  This 
would  be  an  unnecessary  statement  unless  the 
case  were  an  exception.  The  synoptic  Gospels 
do  not  say  that  the  hearing  of  Jesus  was  in  the 
open,  but  later  in  their  narratives  Matthew  and 
Mark  say  that,  when  sentence  had  been  pro- 
nounced, the  soldiers  led  Jesus  into  the  Prae- 
torium.7  Matthew  contains  a  piece  of  evidence 
that  the  courtyard  was  the  regular  place  for  hear- 
ing cases,  for  he  says  that  a  message  came  to 
Pilate  from  his  wife  "while  he  was  sitting  on 
the  judgment-seat."8  It  is  quite  improbable  that 
the  tribunal  on  which  the  presiding  officer  sat 
would  be  moved  out  for  the  sake  of  one  trial. 

But  John's  Gospel  contains  a  remark  in  sev- 
eral places  which  introduces  a  matter  that  is  im- 
possible to  explain  satisfactorily.  The  three 
synoptic  Gospels  represent  Jesus  as  being  be- 
fore the  tribunal  in  the  open  air,  and  in  the  pres- 

B  Cic.  Verr.  2,  81. 

e  Caes.  B.  C.  Ill,  108. 

7  Mt  XXVII,  27;  Mk.  XV,  16. 

»Mt.  XXVII,  19. 


238          THE  PROSECUTION  OF  JESUS 

ence  of  the  accusers,  during  the  whole  progress 
of  the  trial.  John,  on  the  contrary,  says  that 
Jesus  was  taken  "into  the  Praetorium,"  while 
the  accusers  remained  outside.9  Pilate  came  out 
and  listened  to  the  prosecution,  while  Jesus  was 
inside  the  house.  When  the  Jews  had  finished 
making  their  accusations,  and  had  given  argu- 
ments in  favor  of  inflicting  the  death  penalty, 
Pilate  went  indoors  again  to  question  Jesus.10 
The  same  thing  happened  a  second  time,  but  on 
this  occasion  Jesus  also  was  brought  out.11 
Curiously  enough  Pilate  took  Jesus  inside  once 
more,  in  order  to  ask  him  still  further  questions.12 
But,  as  the  conversation  ended  unsatisfactorily, 
he  brought  Jesus  out  for  the  second  time,  and, 
mounting  the  tribunal,  pronounced  sentence.18 
The  picture  drawn  by  John  shows  a  radical  varia- 
tion from  the  procedure  followed  in  all  other 
known  cases,  as  well  as  from  that  pictured  in  the 
synoptic  Gospels.  In  the  first  place,  it  is  worth 
while  to  note  the  general  practice  contained  in 
the  words  of  Festus:  "There  is  a  certain  man 
left  a  prisoner  by  Felix ;  about  whom,  when  I  was 
at  Jerusalem,  the  chief  priests  and  the  elders  of 
the  Jews  informed  me,  asking  for  sentence 
against  him.  To  whom  I  answered,  that  it  is  not 

»Jn.  XVIII,  28. 
10  Jn.  XVIII,  33. 
"  Jn.  XIX,  4. 
12  Jn.  XIX,  8. 
is  Jn.  XIX,  13  ff. 


TRIAL  IN  THE  ROMAN  COURT          239 

the  custom  of  the  Romans  to  give  up  any  man, 
before  that  the  accused  have  the  accusers  face  to 
face,  and  have  had  opportunity  to  make  his  de- 
fense concerning  the  matter  laid  against  him."14 
This  principle  was  firmly  established  in  Roman 
procedure.  It  was,  for  example,  definitely  stipu- 
lated that  a  case  could  not  be  conducted  in  the 
absence  of  the  defendant.  Moreover,  John  repre- 
sents Pilate  as  leaving  his  tribunal  repeatedly, 
and  going  within  the  palace  to  obtain  the  defense 
of  Jesus.  But  the  presiding  officer  in  a  trial  was 
expected  to  remain  upon  his  tribunal,  and  for 
Pilate  to  move  about  in  the  way  indicated  by 
John  would  be  considered  by  the  Romans  a  grave 
irregularity.  The  prosecution  could  not  have 
heard  the  pleadings  of  the  defense,  nor  could 
the  defendant  have  heard  the  arguments  of  the 
prosecution.  For  all  these  reasons  it  is  necessary 
to  adhere  to  the  narrative  of  the  synoptic  Gospels, 
and  to  reject  this  phase  of  the  picture  drawn  by 
John. 

The  mention  of  a  tribunal  suggests  another 
question,  about  which  the  Gospels  give  no  in- 
formation. At  Rome  both  the  presiding  judge 
and  the  jury  sat  upon  the  tribunal.  The  custom 
was  universal  that  criminal  trials  should  take 
place  before  a  jury.  There  is  fairly  good  evi- 
dence that  trial  by  jury  was  also  the  general  prac- 
tice in  the  provinces.  But  in  the  New  Testament 

i*  Acts,  XXV,  14-16. 


240          THE  PROSECUTION  OF  JESUS 

there  is  little  indication  that  juries  existed  in 
Judea.  This  may  be  explained  as  a  mere  omis- 
sion, but  the  only  case  treated  at  any  considerable 
length  is  that  of  Paul  in  Caesarea,  and  it  may 
well  be  that  "the  principal  men  of  the  city" 
formed  a  jury.15 

In  Matthew  and  Mark  not  a  word  is  said  about 
the  initial  stages  of  the  trial  of  Jesus,  and  one  is 
led  to  infer  that  the  first  incident  was  the  demand 
by  Pilate  that  Jesus  take  the  witness  stand  in  his 
own  defense.16  But  John  represents  Pilate  as 
beginning  the  proceedings  in  an  orderly  manner 
by  asking  the  prosecutors  on  what  charge  Jesus 
was  brought  to  him.  "Pilate  therefore  went  out 
unto  them,  and  saith,  What  accusation  bring  ye 
against  this  man?  They  answered  and  said  unto 
him,  If  this  man  were  not  an  evildoer,  we  should 
not  have  delivered  him  up  unto  thee.  Pilate 
therefore  said  unto  them,  Take  him  yourselves, 
and  judge  him  according  to  your  law.  The  Jews 
said  unto  him,  It  is  not  lawful  for  us  to  put  any 
man  to  death."17 

The  fact  that  Pilate  went  out  to  the  place 
where  the  accusers  of  Jesus  were,  provided  this 
clause  in  John's  Gospel  is  accurate,  may  be  taken 
as  evidence  that  this  was  the  first  case  to  be  heard 
on  that  day.  The  two  thieves  who  were  later 

IB  A  cts,  XXV,  23. 

ie  Mt.  XXVII,  11 ;  Mk.  XV,  2. 

if  Jn.  XVIII,  29-31. 


TRIAL  IN  THE  ROMAN  COURT         241 

crucified,  one  on  each  side  of  Jesus,  were  prob- 
ably condemned  on  the  preceding  evening,  but 
too  late  to  carry  the  execution  into  effect  at  that 
time.  The  first  question  asked  by  Pilate  consti- 
tutes the  formal  opening  of  the  trial.  It  was  un- 
doubtedly a  stock  phrase,  used  ordinarily  to  give 
an  appropriate  opportunity  to  the  prosecution  to 
begin  the  presentation  of  its  case.  Many  scholars 
have  taken  it  as  proof  that  Pilate  had  no  previous 
knowledge  of  the  case,  and  that  he  heard  of  it 
now  for  the  first  time.  It  is  quite  likely  that 
Pilate  had  only  the  most  general  knowledge  of 
the  case  in  advance,  but  this  does  not  follow  from 
the  language  he  uses.  He  would  employ  a  phrase 
of  this  kind,  quite  irrespective  of  his  familiarity 
with  the  matter. 

John's  statement  of  the  reply  of  the  accusers 
to  Pilate  has  often  been  suspected  of  inaccuracy, 
and  certainly  it  is  an  astonishing  answer  to  make 
to  the  governor  of  the  province  and  to  the  pre- 
siding judge  in  the  present  case.  It  is  extremely 
impertinent.  Pilate  knew,  as  his  first  question 
shows,  that  a  case  at  law  was  being  presented  to 
him,  and  asked  in  the  normal  and  proper  manner 
that  the  prosecutors  offer  him  their  indictment 
against  the  defendant.  Instead  of  receiving  a 
courteous,  or  even  formal,  reply  to  his  request, 
he  got  an  impudent  statement  that  the  defendant 
was  guilty  of  something,  but  they  did  not  divulge 
the  nature  of  his  offense.  In  addition  to  its  impu- 


242          THE  PROSECUTION  OF  JESUS 

dence,  their  declaration  was  very  impolitic.  It 
is  hard  to  conceive  of  a  reply  that  would  be  more 
prejudicial  to  their  cause.  Whatever  may  be  said 
about  the  honesty  of  the  accusation  against  Jesus, 
the  Sanhedrists  cannot  be  suspected  of  stupidity, 
and  the  reply  they  are  here  said  to  have  made  to 
Pilate  is  stupid  to  the  last  degree.  Those  who 
insist  that  the  Sanhedrin  had  the  right  to  listen 
to  cases,  and  to  render  a  verdict,  and  merely  to 
have  their  findings  approved  or  disapproved  by 
the  governor,  see  in  this  reply  a  deliberately 
planned  evasion.  It  is  said  that  they  knew  that 
they  did  not  have  a  good  case  against  Jesus,  and 
wished  to  conceal  this  fact  from  Pilate.  They 
hoped,  therefore,  to  induce  him  to  pronounce 
sentence  in  accordance  with  their  findings  with- 
out taking  the  trouble  to  investigate,  or  even  to 
look  into  the  nature  of  the  accusation.  The  im- 
probability of  their  having  such  an  expectation  is 
manifest.  They  had  for  several  years  experienced 
the  severity  of  this  governor,  and  must  have 
known  that  he  had  not  sufficient  confidence  in 
them  to  accept  so  readily  their  opinions  and  de- 
cisions. They  had  also  for  ninety  years  experi- 
enced Roman  rigor  in  handling  all  kinds  of  cases, 
and  surely  knew  that  no  governor  would  act  in  the 
manner  here  assumed.  The  unreasonableness  of 
this  view  is  still  more  apparent  if  one  believes 
that  the  Sanhedrin  had  the  power  only  to  hold 
preliminary  hearings,  and  report  an  indictment 


TRIAL  IN  THE  ROMAN  COURT         243 

to  the  governor.  In  fact  there  is  no  interpreta- 
tion that  can  be  given  to  the  statement  which  will 
exonerate  the  prosecutors  from  an  incredible 
stupidity.  It  is  impossible  to  believe  that  their 
reply  to  the  request  of  Pilate  has  been  correctly 
reported  by  John. 

If  this  verse  is  rejected,  it  might  seem  unneces- 
sary to  discuss  the  next  statement  attributed  to 
Pilate,  for  it  would  naturally  be  rejected  along 
with  the  one  immediately  preceding.  But  quite 
independently  of  this  argument  the  reply  of 
Pilate  raises  some  difficult  questions.  He  said: 
"Take  him  yourselves,  and  judge  him  according 
to  your  law."  This  certainly  implies  that  the 
writer  believed  that  the  Jewish  court  had  the  right 
to  try  some  kind  of  cases.  The  governor's  com- 
mand is  usually  interpreted  in  the  light  of  the 
statement  contained  in  the  Talmud,  that  the  San- 
hedrin  had  lost  the  power  to  pass  capital  sentences 
forty  years  before  the  destruction  of  the  temple 
in  the  war  against  Titus.  With  that  statement 
in  mind  commentators  for  the  most  part  hold  that 
Pilate  thought  the  accusation  against  Jesus  was 
something  comparatively  insignificant,  and  could 
readily  be  treated  by  the  Jewish  court.  One  can 
scarcely  argue  in  this  way,  and  still  hold  that 
he  gave  troops  to  assist  in  making  the  arrest. 
If  he  had  previous  knowledge  of  the  reasons  for 
the  arrest,  the  present  dialogue  would  be  absurd. 
It  was  said  above  that  the  governor's  demand  for 


244          THE  PROSECUTION  OF  JESUS 

a  presentation  of  an  indictment  did  not  prove  that 
he  had  no  previous  knowledge  of  the  case.  Pro- 
vided, however,  the  statement  now  under  dis- 
cussion is  genuine,  there  is  in  it  absolute  proof 
that  he  did  not  know  accurately  what  the  case 
was.  Had  he  known  that  it  was  a  criminal  case, 
and  especially  had  he  known  that  it  was  a  case 
of  treason,  he  could  never  have  seriously  consid- 
ered granting  to  the  Jewish  court  the  privilege 
here  assumed. 

It  has  sometimes  been  held,  therefore,  that 
Pilate  was  merely  mocking  the  powerlessness  of 
his  subjects,  for  he  well  knew  that  they  could  not 
follow  his  suggestion.  If  one  accepts  the  por- 
trayal of  his  character  given  by  Josephus  and 
Philo,  he  can  also  believe  that  Pilate  would 
readily  mock  his  subjects  on  this  or  any  other 
occasion.  But  it  would  be  quite  inconsistent  with 
the  representation  of  Pilate  in  the  four  Gospels. 
He  is  there  shown  to  be  exceedingly  anxious 
to  do  nothing  to  offend  the  Jews,  and  if  he  was 
endeavoring  to  maintain,  or  regain,  their  good 
will,  he  acted  very  foolishly  in  making  them,  at 
the  outset  of  the  trial,  bitterly  conscious  of  their 
dependent  position  under  Roman  sway.  His 
tactlessness  would  be  equalled  only  by  that  of 
the  prosecutors  immediately  before  it.  Another 
explanation  that  has  been  given  is  that  Pilate  had 
got  word  of  the  irregularity  of  the  proceedings 
in  the  meeting  of  the  Sanhedrin  by  night,  and 


TRIAL  IN  THE  ROMAN  COURT         245 

now  commanded  the  accusers  to  take  Jesus  back 
and  give  him  a  fair  hearing.  That  would  be  a 
reasonable  explanation,  provided  one  believed 
that  the  proceedings  before  the  Sanhedrin  were 
supposed  to  constitute  a  formal  trial.  But  if  one 
believes  that  the  hearing  was  only  for  the  purpose 
of  preparing  an  indictment,  it  is  a  thoroughly 
proper  assumption  that  Pilate  would  not  be  con- 
cerned about  the  formality  or  the  regularity  of 
the  investigation.  If  they  had  not  done  their 
work  well,  he  could  simply  throw  the  case 
out  of  court.  One  may  also  fairly  argue  that  he 
would  be  saved  unnecessary  work  or  trouble  if 
the  cases  brought  before  him  were  systematically 
presented,  for  then  he  could  cover  the  various 
cases  arising  at  the  assize  in  quicker  fashion,  and 
could  finish  his  work  more  readily  and  satisfac- 
torily. According  to  this  view  Pilate  could  well 
say  that  he  would  like  the  Sanhedrin  to  be  sure 
that  their  indictment  had  good  foundation,  and 
that  they  had  it  in  such  shape  that  he  could  go 
over  it  quickly.  That  is  the  most  reasonable  in- 
terpretation of  the  command.  It  is  also  possible 
to  argue  that  Pilate  got  the  idea  that  Jesus  was 
guilty  of  some  ecclesiastical  offense,  and  did  not 
wish  the  Jews  to  bring  matters  of  that  kind  be- 
fore him.  This  may  in  reality  be  the  situation, 
for  perhaps  he  and  his  predecessors  had  had  sim- 
ilar experiences. 

The  reason  assigned  by  the  Jews,  in  the  narra- 


246          THE  PROSECUTION  OF  JESUS 

tive  of  John,  for  their  appearance  before  Pilate, 
and  for  their  inability  to  handle  the  case  by  them- 
selves, is  given  in  the  words :  "It  is  not  lawful  for 
us  to  put  any  man  to  death."  The  word  trans- 
lated "lawful"  (ef«m)  signifies  properly  "possi- 
ble," and  is  not  primarily  a  legal  term  at  all. 
Consequently  the  common  explanation,  that  the 
Jews  meant  to  say  that  they  had  been  deprived 
of  the  right  to  pass  death  sentences,  is  not  of 
necessity  implied  in  the  statement.  There  is,  in- 
deed, some  justification  for  the  meaning  assigned 
by  the  writer  of  the  Acts  of  Pilate,  that  putting 
to  death  was  forbidden  by  the  commandment, 
"Thou  shalt  not  kill."  It  is  worthy  of  note  also 
that  the  word  translated  "put  to  death"  (airo- 
KT€LV<D)  is  the  word  used  by  Mark  in  connection 
with  the  meeting  of  the  Sanhedrin  two  days  be- 
fore the  feast  of  the  passover.18  In  that  passage 
many  scholars  wish  to  explain  the  word  as  equiva- 
lent to  "kill  unlawfully,"  or  "murder."  The  ab- 
surdity of  this  meaning  is  clear  from  the  fact 
that  the  same  word  occurs  in  the  passage  under 
discussion,  for  it  would  be  extremely  unnatural 
for  the  Jews  to  say  that  they  were  not  per- 
mitted to  murder  a  man,  and  that  therefore  they 
brought  the  man  to  Pilate.  On  the  whole  it  seems 
best  to  regard  the  expression  as  denoting  the  loss 
of  a  power  formerly  possessed,  and  a  more  ac- 
curate translation  would  be :  "It  is  not  permitted 

XIV,  1. 


TRIAL  IN  THE  ROMAN  COURT         247 

to  us  to  put  any  man  to  death."  The  form  of 
the  sentence  is  a  sign  to  Pilate  that  the  charge 
against  Jesus  was  a  serious  one,  involving  a  possi- 
ble capital  punishment,  but  it  would  not  yet  be 
clear  to  him  whether  the  charge  was  criminal  or 
ecclesiastical. 

The  next  verse  in  John  reads :  "Pilate  there- 
fore entered  again  into  the  Praetorium,  and 
called  Jesus,  and  said  unto  him,  Art  thou  the 
king  of  the  Jews?"  Manifestly  this  cannot  follow 
directly  upon  the  verse  immediately  preceding. 
There  must  have  been  some  intervening  steps, 
which  are  not  mentioned  in  John's  Gospel.  The 
first  of  the  intervening  steps  is  that  contained  in 
the  narrative  of  Luke:  "And  they  began  to  ac- 
cuse him,  saying,  We  found  this  man  perverting 
our  nation,  and  forbidding  to  give  tribute  to 
Caesar,  and  saying  that  he  himself  is  Christ  a 
king."19  This  has  the  form  of  a  real  indictment, 
and  one  is  inclined  to  accept  it  as  the  actual  form 
of  accusation  presented  by  the  prosecutors.  Un- 
fortunately the  other  three  evangelists  say 
nothing  whatever  about  any  part  of  this  charge 
except  that  Jesus  claimed  to  be  a  king.  For  this 
reason  some  have  thought  that  only  the  last  sec- 
tion of  the  indictment  given  by  Luke  formed  the 
actual  charge,  and  that  this  brings  the  hearing  be- 
fore the  Sanhedrin  and  the  trial  by  Pilate  into  / 
complete  harmony.  That  is  indeed  possible,  but  it/ 

19  Lk.  xxui,  2.  ;  a- 


248          THE  PROSECUTION  OF  JESUS 

is  much  more  probable  that  the  other  Gospels 
have  simply  omitted  the  parts  of  the  indictment 
that  were  of  least  importance  in  the  Roman  court. 
The  word  "pervert"  (Siao-r/ae^co)  in  the  indict- 
ment given  by  Luke  clearly  has  reference  to  a 
portion  of  the  charge  made  against  Jesus  in  the 
presence  of  the  Sanhedrin.  Jesus  was  endeavor- 
ing to  "turn  aside"  or  "twist"  the  people  from 
the  normal  or  expected  course.  It  was  an  effort 
to  overturn  the  national  religion,  and  substitute 
something  new  for  it.  This  is  the  crime  of  false 
prophecy  mentioned  so  often  in  the  Talmud.  But 
when  we  recollect  that  Paul  was  called  a  stirrer 
up  of  insurrections,  we  can  readily  see  that  this 
ecclesiastical  charge  might  very  easily  become  of 
political  significance,  even  in  the  minds  of  those 
who  made  it.  The  Jew  in  uttering  this  phrase 
might  think  only  of  its  religious  bearing,  the 
Roman  in  hearing  it  might  think  only  of  its  po- 
litical meaning.  It  could  readily  be  suspected 
that  the  Sanhedrin  realized  the  ambiguity  of  the 
language.  But  if  we  assume  that  Luke  is  giving 
the  indictment  accurately,  we  are  estopped  from 
making  the  claim  that  is  so  generally  made,  that 
the  Sanhedrin  falsified  their  findings  when  they 
presented  the  case  to  Pilate.  Their  decision  that 
Jesus  was  guilty  of  an  ecclesiastical  offense  is 
expressed  in  the  first  clause  of  the  indictment, 
and  if  it  was  not  examined  carefully,  or  if  it  was 
not  again  brought  forward  prominently,  that 


TRIAL  IN  THE  ROMAN  COURT         249 

cannot  be  charged  against  the  Sanhedrin,  but  was 
due  to  the  turn  given  to  the  trial  by  Pilate.  If 
he  thought  the  first  clause  related  to  the  native 
religion,  he  was  not  interested  in  that  phase  of 
the  matter.  If  he  thought  it  was  political,  he 
could  get  sufficient  information  to  convict  or 
acquit  the  prisoner  by  investigating  the  circum- 
stances connected  with  the  last  clause  of  the 
indictment.  Consequently  he  proceeded  imme- 
diately to  that  portion  of  the  case  in  which  he  was 
most  deeply  concerned. 

The  second  clause  in  the  indictment,  "and  for- 
bidding to  give  tribute  to  Caesar,"  is  by  all  the 
canons  of  historical  criticism  a  false  accusation. 
Luke  is  himself  one  of  the  sources  for  the  famous 
saying  of  Jesus  concerning  the  tribute,  and  one 
cannot  read  that  passage  in  Luke's  Gospel  with- 
out believing  that  Jesus  counselled  his  fellow 
countrymen  to  pay  their  taxes  to  the  Empire,  as 
other  subject  nations  paid  theirs.  "But  he  per- 
ceived their  craftiness,  and  said  unto  them,  Show 
me  a  denarius.  Whose  image  and  superscription 
hath  it?  And  they  said,  Caesar's.  And  he  said 
unto  them,  Then  render  unto  Caesar  the  things 
that  are  Caesar's,  and  unto  God  the  things  that 
are  God's."20  The  conversation  is  declared  in  all 
three  synoptic  Gospels  to  have  occurred  during 
the  passion  week,  so  that  it  seems  incredible  that 
the  statement  of  Jesus  could  have  been  turned 

20  Lk.  XX,  23-25;  Mt.  XXII,  17-21;  Mk.  XII,  14-17. 


250          THE  PROSECUTION  OF  JESUS 

about  so  thoroughly  in  the  intervening  few  days. 
It  is  also  noteworthy  that  the  remark  of  Jesus 
was  addressed  to  emissaries  of  the  Sanhedrin,  and 
it  is  difficult  to  see  how  they  could  have  utterly 
mistaken  his  meaning.  Indeed  Luke  implies  that 
they  understood  perfectly,  for  he  says  that  they 
"were  not  able  to  take  hold  of  the  saying  before 
the  people."  Luke  assumes  that  they  would  have 
been  pleased  to  interpret  it  to  the  disadvantage 
of  Jesus,  but  that  they  found  it  impossible.  In 
view  of  these  facts,  if  any  one  section  of  the  in- 
dictment must  be  pronounced  spurious,  this  is  the 
one.  No  doubt  witnesses  could  be  secured  to  give 
testimony  that  Jesus  had  said  just  the  opposite 
of  what  he  did  say,  but  that  could  scarcely  have 
been  done  only  two  or  three  days  after  the  con- 
versation itself  took  place  without  bringing  the 
whole  case  under  suspicion.  Either  this  clause 
formed  no  part  of  the  indictment,  or  the  Sanhe- 
drin hoped  that  it  could  be  slipped  into  the  record 
and  have  its  effect  upon  Pilate  while  escaping  the 
notice  of  the  friends  of  Jesus  among  the  people. 
The  third  section  of  the  indictment,  "saying 
that  he  himself  is  Christ  a  king,"  is  by  no  means 
astonishing.  It  is  merely  placing  emphasis  on 
one  phase  of  the  claim  of  Jesus  that  he  was  the 
Messiah.  The  accusation  arises  naturally  out  of 
the  confession  of  Jesus,  and  especially  out  of  the 
expression  "from  henceforth  shall  the  Son  of  man 
be  seated  at  the  right  hand  of  the  power  of  God." 


TRIAL  IN  THE  ROMAN  COURT          251 

That  would  be  sufficient  to  justify  the  insertion 
of  this  point  in  the  indictment,  and  to  justify  the 
insertion  honestly,  provided  the  Sanhedrin  hon- 
estly believed  that  Jesus  was  not  the  Messiah.  A 
false  Messiah  might  have  been  punished  by  death 
under  the  Jewish  law,  as  a  deceiver,  if  the  Jewish 
court  still  had  the  power  to  inflict  a  penalty  so 
severe.  The  claim  to  the  messiahship  could  be 
construed  as  either  ecclesiastical  or  political,  and 
the  Jewish  authorities  who  emphasized  the  politi- 
cal aspects  of  the  claim  when  they  were  trying 
to  make  their  case  valid  in  the  opinion  of  Roman 
judicial  officers  can  scarcely  be  charged  with 
serious  impropriety. 

It  must  have  been  immediately  after  the  pre- 
sentation of  the  indictment  that  Pilate  asked 
Jesus  whether  he  was  guilty  or  not.  Mark  re- 
ports the  incident  thus :  "And  Pilate  asked  him, 
Art  thou  the  King  of  the  Jews?"21  The  words 
of  Pilate  are  given  in  all  four  Gospels  in  identical 
language,  which  must  represent,  therefore,  an 
accurate  tradition  in  the  church.  The  first  diffi- 
culty here  is  the  exact  meaning  to  be  attributed 
to  the  words  used  by  Pilate.  Owing  to  the  inser- 
tion of  the  pronoun  at  the  beginning  of  the  sen- 
tence (crv  el  6  /SacriXevs  TO>V  'louSaian',-),  it  is  often 
thought  that  the  question  of  Pilate  simply  indi- 
cated great  surprise  that  this  should  be  the  person 
who  claimed  to  be  a  king.  So  it  is  translated: 

21  Mk.  XV,  2;  cp.  Mt.  XXVII,  11;  Lk.  XXIII,  3. 


252          THE  PROSECUTION  OF  JESUS 

"Art  thou  the  King?"  The  appearance  of  Jesus 
after  a  night  of  vigil,  severe  strain,  and  ill  treat- 
ment, would  be  far  from  regal,  and  Pilate  could 
not  believe  that  the  accusation  was  made  against 
him  seriously.  But  a  closer  scrutiny  of  the  sen- 
tence will  show  that  no  especial  emphasis  can  be 
placed  upon  the  pronoun.  The  position  of  the 
pronoun  is  the  natural  one  in  a  sentence  contain- 
ing the  series  of  words  found  in  this  one.  It  must 
also  be  remembered  that  the  pronouns  were  used 
with  much  greater  frequency  in  this  century  than 
they  had  been  during  the  classical  period  of 
Greek  literature  four  centuries  earlier,  and  their 
frequent  use  destroyed  their  earlier  emphasis.  An 
illustration  is  found  in  the  next  clause,  "Thou 
sayest"  (<rv  Xeyets)  where  the  pronoun  has  not 
the  slightest  emphasis.  The  question  may  then 
be  taken  as  the  ordinary  one  asked  by  Pilate  when 
seeking  information  about  a  fact,  and  not  about 
a  person. 

But  it  is  more  difficult  to  determine  the  reason 
for  asking  the  question,  and  its  place  in  the  trial. 
In  a  modern  court  it  would  be  eminently  proper, 
and  indeed  necessary,  for  this  is  exactly  the  place 
at  which  the  prisoner  should  be  asked  to  plead 
guilty  or  not  guilty  to  the  charge.  But  that  was 
not  the  arrangement  in  a  criminal  case  at  Rome. 
There  the  initial  step  taken  by  the  prosecutor  was 
that  he  appeared  before  the  appropriate  praetor 
and  stated  his  case.  Some  days  later  both  parties 


TRIAL  IN  THE  ROMAN  COURT         253 

to  the  suit  came  to  the  praetor,  and  the  defendant 
was  expected  to  answer  questions.  Among  the 
questions  was  one  on  the  main  issue,  namely, 
whether  or  not  he  had  committed  the  deed  he  was 
alleged  to  have  committed.  Even  if  he  admitted 
the  act,  he  might  still  maintain  its  legality,  and 
the  course  of  trial  was  not  affected  by  the  plead- 
ing of  the  defendant.  After  this  meeting  some 
days  again  elapsed  before  the  actual  trial  oc- 
curred. This  procedure  was  impossible  in  the 
provinces,  where  the  governor  was  forced  to  hear 
a  large  number  of  cases  in  a  short  time.  It  is 
probable  that  the  whole  procedure  was  so  short- 
ened that  the  pleading  of  the  defendant  took 
place  at  the  time  of  trial.  If  so  the  question  of 
Pilate  was  not  only  permissible  but  necessary. 
The  only  real  parallel  to  it  is  found  in  the  trials 
of  Christians  by  Pliny  in  Bithynia  seventy-five 
years  later.  Pliny,  in  giving  an  account  of  these 
trials  to  the  emperor  Trajan,  says  that  after  the 
charge  was  made  he  asked  the  defendants  directly 
whether  they  were  Christians  or  not.  If  they 
admitted  that  they  were,  he  proceeded  with  the 
trial.22 

The  answer  of  Jesus  is  given  in  the  three 
synoptic  Gospels  in  the  form  "Thou  sayest." 
It  is  generally  agreed  that  this  is  equivalent  to  an 
affirmative  reply,  but  possibly  with  a  difference 
in  emphasis.  It  seems  to  throw  the  responsibility 

22  Pliny,  Ep.  X,  96. 


254          THE  PROSECUTION  OF  JESUS 

for  the  statement  on  the  person  asking  the  ques- 
tion. It  is  rather  an  admission  than  a  freely  made 
avowal.  Matthew  has  virtually  the  same  phrase 
in  the  account  of  the  last  supper,  when  Judas 
asked  Jesus  whether  he  were  the  one  who  should 
betray  him.  Jesus  answered,  "Thou  sayest  (<ri> 
eiTra?  )  ,"23  Luke  uses  a  variation  in  the  confession 
of  Jesus  at  the  hearing  before  the  Sanhedrin: 
"Ye  say  that  I  am,"24  where  an  alternative  trans- 
lation, "Ye  say  it,  because  I  am,"  is  well  sug- 
gested by  the  American  Revision  Committee. 
On  that  occasion  the  Sanhedrin  certainly  re- 
garded the  statement  of  Jesus  as  an  affirmative 
reply,  for  they  immediately  pronounced  him 
guilty. 

John  reports  the  incident  of  the  question  and 
its  answer  in  an  entirely  different  manner.25  Ac- 
cording to  this  account,  when  Pilate  asked  Jesus 
whether  he  was  a  king,  he  did  not  receive  a  direct 
reply,  but  Jesus  in  turn  began  to  question  Pilate. 
"Jesus  answered,  Sayest  thou  this  of  thyself,  or 
did  others  tell  it  thee  concerning  me?"  No  doubt 
Jesus  is  here  genuinely  asking  for  information, 
in  order  to  give  an  adequate  answer.  The  ques- 
tion means:  "Are  you  asking  this  as  a  Roman, 
and  will  you  interpret  an  affirmative  answer  in 
the  sense  in  which  a  Roman  would  normally 


as  Mt.  XXVI,  25. 
a*  Lk.  XXII,  70. 
25  jn.  XVIII,  34-38. 


TRIAL  IN  THE  ROMAN  COURT        255 

understand  the  term  king?  Or  did  the  Jews  talk 
with  you,  and  does  your  question  mean  that  you 
wish  to  ascertain  whether  I  am  the  Messiah,  in 
the  Jewish  sense  ?"  Evidently  Pilate  understands 
the  question  of  Jesus  in  this  way,  for  he  answers : 
"Am  I  a  Jew?  Thine  own  nation  and  the  chief 
priests  delivered  thee  unto  me:  what  hast  thou 
done?"  Pilate's  first  brief  rhetorical  question 
shows  that  he  intended  his  original  inquiry  in  the 
Roman  sense.  He  spurns  the  idea  that  he  would 
become  an  inquirer  into  the  peculiar  beliefs  or 
names  used  by  the  Jews.  The  Roman  spirit  again 
crops  out  in  Pilate's  further  question :  "What  hast 
thou  done?"  He  has  no  interest  in  the  definition 
of  terms ;  he  does  not  care  much  about  the  political 
opinions  of  either  the  prosecutors  or  the  de- 
fendant; he  wishes  to  know  whether  Jesus  has 
committed  any  act  which  would  place  him  under 
the  operation  of  the  Julian  law  of  treason.  These 
two  distinctly  Roman  touches  afford  excellent 
evidence  that  the  series  of  questions  and  answers 
between  Jesus  and  Pilate  is  historically  accurate, 
and  may  be  accepted  despite  the  fact  that  they 
are  reported  by  John  alone. 

In  response  to  the  last  question  of  Pilate,  Jesus 
makes  a  statement,  without  as  yet  giving  a  defi- 
nitely affirmative  or  negative  reply.  "Jesus 
answered,  My  kingdom  is  not  of  this  world:  if 
my  kingdom  were  of  this  world,  then  would  my 
servant^  fight,  that  I  should  not  be  delivered  to 


256          THE  PROSECUTION  OF  JESUS 

the  Jews :  but  now  is  my  kingdom  not  from  hence. 
Pilate  therefore  said  unto  him,  Art  thou  a  king- 
then?  Jesus  answered,  Thou  sayest  that  I  am 
a  king."  The  first  statement  of  Jesus  could 
naturally  be  construed  as  an  affirmative  reply, 
but  Pilate  wishes  it  to  be  made  very  explicit,  and 
repeats  his  question.  This  is  another  distinctively 
Roman  touch,  which  gives  the  episode  an  air  of 
accuracy.  But  in  the  synoptic  accounts  of  the 
trial  there  is  nothing  resembling  the  sentence  ut- 
tered by  Jesus.  There  is,  however,  something 
similar  in  Matthew's  narrative  of  the  arrest. 
Jesus  had  forbidden  his  disciples  to  offer  resist- 
ance, and  then  added:  "Or  thinkest  thou  that  I 
cannot  beseech  my  Father,  and  he  shall  even  now 
send  me  more  than  twelve  legions  of  angels?"26 
The  strong  resemblance  between  the  two  passages 
warrants  the  belief  that  Jesus  made  a  remark  of 
this  kind  at  some  time  in  connection  with  the  trial 
or  the  arrest.  The  form  that  appears  in  John 
has  the  apologetic  nature  so  characteristic  of  the 
fourth  Gospel,  but  it  may  here  readily  be  under- 
stood as  a  proper  explanation  of  the  present  very 
unkingly  position  of  Jesus.  On  the  other  hand, 
the  variation  in  Matthew  suggests  a  boastfulness 
unlike  Jesus.  He  there  boasts  that  he  could  ob- 
tain a  supernatural  army  if  he  desired,  and  thus 
free  himself  from  his  plight.  In  John  the  state- 
ment is  simple,  and  expresses  confidence  in  the 

26  Mt.  XXVI,  53. 


TRIAL  IN  THE  ROMAN  COURT         257 

spiritual  aspects  of  the  work  of  Jesus,  but  shows 
that  he  had  no  intention  of  inaugurating  a  tem- 
poral kingdom.  Probably  this  induced  Pilate  to 
labor  for  the  release  of  Jesus. 

To  the  disclaimer  of  Jesus  that  he  intended  to 
prove  a  right  to  the  title  of  king  by  a  display  of 
physical  power,  the  remarkable  statement  is 
added:  "To  this  end  have  I  been  born,  and  to 
this  end  am  I  come  into  the  world,  that  I  should 
bear  witness  unto  the  truth.  Every  one  that  is 
of  the  truth  heareth  my  voice.  Pilate  saith  unto 
him,  What  is  truth?"  The  whole  conversation 
is  reported  by  John  alone,  and  is  another  example 
of  the  kind  of  interpretation  so  commonly  found 
in  this  Gospel.  It  strongly  suggests  the  effort 
of  one  who  is  endeavoring  to  render  harmless  the 
claim  of  Jesus  that  he  is  a  king.  But  it  leads  to 
no  natural  limit,  or  conclusion.  Pilate's  question, 
"What  is  truth?"  remains  unanswered,  and  is  not 
the  termination  for  which  one  would  look  in  such 
a  conversation.  This  also  must  be  regarded  as 
an  addition  by  John,  which  is  at  least  not  a  neces- 
sary portion  of  the  episode  of  the  trial. 

At  this  point  there  is  a  decided  variation  in  the 
sources,  with  Luke  and  John  on  one  side,  and 
Matthew  and  Mark  on  the  other.  Luke  and  John 
say  that  Pilate  immediately  reported  to  the  Jews 
that  he  found  no  fault  in  Jesus.27  The  words  of 
Pilate  in  the  two  Gospels  are  identical,  except 

27  Lk.  XXIII,  4;  Jn.  XVIII,  38. 


258          THE  PROSECUTION  OF  JESUS 

that  John  uses  a  noun  (alrCav)  where  Luke  uses 
the  corresponding  adjective  (alnov).  The  King 
James  version  translated  both  passages:  "I  find 
no  fault  in  him,"  but  the  American  Revision 
Committee  translates  the  adjective  of  Luke 
"fault,"  and  the  noun  of  John  "crime."  The  new 
translation  of  the  verse  of  John  is  undoubtedly 
erroneous,  and  it  is  questionable  whether  the 
translation  in  the  older  version  is  sufficiently  ac- 
curate. The  original  word  means  "cause  for 
question,"  "cause  for  accusation,"  or  more  con- 
cretely "accusation."  But  it  does  not  mean  the 
crime  of  which  one  may  be  accused,  nor  does  it 
mean  fault  in  the  concrete  sense. 

The  statement  of  Pilate  is  almost  universally 
taken  to  mean  a  verdict  of  acquittal,  but  that  is 
quite  unwarranted  by  the  text  of  the  two  Gospels. 
It  is  commonly  said  that  the  trial  up  to  this  point 
was  conducted  in  an  orderly  fashion,  but  that 
after  the  acquittal  by  Pilate  it  degenerated  into 
noisy  proceedings,  guided  by  the  impulses  of  the 
mob.  The  acquittal  exasperated  the  crowd  to 
such  an  extent  that  they  proceeded  to  threaten 
Pilate  unless  he  should  yield  to  their  demand  for 
the  punishment  of  Jesus.  It  assuredly  seems  that 
this  understanding  of  the  situation  is  due  to  the 
unfortunate  translations  of  the  texts  of  Luke  and 
John,  for  the  Greek  of  the  original  gives  a  very 
different  impression.  Pilate  surely  had  heard 
Jesus  confess  that  he  was  a  king,  and  the  con- 


TRIAL  IN  THE  ROMAN  COURT        259 

fession  would  render  him  subject  to  the  operation 
of  the  Julian  law  of  treason,  for  it  tended  to 
diminish  the  authority  of  the  Roman  government. 
It  is  furthermore  quite  incredible  that  he  had  not 
heard  of  the  triumphal  entry  into  Jerusalem  on 
the  preceding  Sunday. 

Pilate's  statement  really  means  that,  while 
Jesus  claimed  to  be  a  king,  and  some  of  his  fellow 
citizens  evidently  believed  that  he  was  to  become 
a  temporal  king,  he  was  nevertheless  convinced 
that  the  movement  of  the  followers  of  Jesus  was 
a  mistaken  one,  and  that  Jesus  had  no  intention 
of  fomenting  rebellion  against  the  Empire. 
Technically  Jesus  was  guilty,  but  actually  he  was 
innocent  of  intentional  guilt.  For  this  reason 
Pilate  wished  the  prosecutors  not  to  press  the 
charge,  but  to  allow  Jesus  to  go  free.  This  view 
makes  clear  the  reasons  for  Pilate's  later  attempts 
to  release  Jesus,  and  at  the  same  time  frees  him 
from  the  charge  so  often  made  against  him,  that 
he  illegally  crucified  an  innocent  man.  It  seems 
to  show  that  Jesus  was  innocent  of  a  deliberate 
criminal  offense  against  the  Empire,  and  that 
Pilate  recognized  this  fact,  but  that  the  claims  of 
Jesus,  and  the  results  of  those  claims,  did  fall 
within  the  provisions  of  the  Julian  law  of  treason. 
The  judge  was  forced,  therefore,  to  accept  this 
actual  condition  when  the  prosecutors  would  not 
yield  their  right  of  pressing  the  charge.  Herein 
is  found  also  an  explanation  of  the  statement 


260          THE  PROSECUTION  OF  JESUS 

frequently  made  in  other  writings  of  the  New 
Testament,  that  the  Jews  had  crucified  Christ.28 
They  were  responsible,  inasmuch  as  they  would 
not  accede  to  the  wishes  of  the  governor. 

Matthew  and  Mark  continue  their  narratives 
by  stating  that  further  accusations  were  made 
against  Jesus,  but  they  do  not  specify  the  nature 
of  the  additional  charges.  "And  the  chief  priests 
accused  him  of  many  things.  And  Pilate  again 
asked  him,  saying,  Answerest  thou  nothing?  be- 
hold how  many  things  they  accuse  thee  of.  But 
Jesus  no  more  answered  anything ;  insomuch  that 
Pilate  marvelled."29  In  this  passage  there  is  an 
interesting,  and  very  important,  variation  be- 
tween the  account  of  Mark  and  that  of  Matthew. 
Mark  says :  "behold  how  many  things  they  accuse 
thee  of,"  while  Matthew  gives  it  in  the  form: 
"Hearest  thou  not  how  many  things  they  witness 
against  thee?"  The  word  used  by  Matthew  for 
"witness"  (KarafjiapTvpovcnv)  is  the  technical  word 
for  the  giving  of  evidence  by  witnesses  in  a  court. 
The  other  Gospels  give  no  hint  that  witnesses 
were  summoned,  and  Matthew  does  so  only  in 
this  one  word.  But  the  close  resemblance  here 
of  Matthew  to  Mark  is  sufficient  to  induce  the 
belief  that  Matthew  based  the  statement  on 
Mark,  but  corrected  Mark  by  the  aid  of  his  own 
independent  source.  In  that  case  Matthew  found 

28  E.  g.  Acts,  III,  13;  IV,  10;  V,  30;  VII,  52;  X,  39. 
2»  Mk.  XV,  4-5;  cp.  Mt.  XXVII  12-14. 


TRIAL  IN  THE  ROMAN  COURT         261 

that  the  narrative  of  Mark  was  incomplete  in  this 
particular,  and  changed  it  to  conform  to  what  he 
considered  the  better  tradition.  It  was  suggested 
above  that  some  members  of  the  Sanhedrin  may 
have  been  present  at  the  trial  to  serve  as  witnesses 
for  the  prosecution.  This  is  partially  corrobo- 
rated by  the  only  extant  source  that  tells  of  wit- 
nesses being  summoned  for  the  trial.  The  Acts 
of  Pilate,  often  called  the  first  part  of  the  Gospel 
of  Nicodemus,  treats  at  considerable  length  the 
taking  of  evidence  for  both  parties  to  the  suit, 
and  there  it  seems  that  members  of  the  Sanhedrin 
were  those  who  took  the  stand  against  Jesus. 

It  is  impossible  to  believe  that  the  evidence 
quoted  in  the  Acts  of  Pilate  is  quite  authentic, 
but  it  no  doubt  contains  something  that  was  cur- 
rent in  the  church,  and  in  its  main  outlines  may 
be  accepted  as  trustworthy.  That  is  to  say,  there 
must  have  been  a  tradition  in  the  church  that 
evidence  was  presented  both  for  and  against 
Jesus,  and  the  nature  of  the  testimony  must  have 
been  a  matter  of  tradition  also.  The  book  nar- 
rates how  "the  Jews"  gave  evidence  in  various 
ways,  and  on  various  topics,  against  Jesus,  and 
how  others  gave  evidence  in  his  favor.  Some  who 
testified  in  his  behalf  showed  that  he  had  done 
much  good  without  breaking  the  law,  while  others 
showed  that,  although  he  broke  the  law,  as  when 
he  healed  on  the  sabbath  day,  the  blessings  of  his 
work  more  than  compensated  for  the  transgres- 


262          THE  PROSECUTION  OF  JESUS 

sion  of  the  law.  This  can  scarcely  be  a  deliberate 
forgery  but  probably  represents  in  the  strongest 
possible  light  the  evidence  offered,  in  order  to 
make  the  actions  of  the  prosecutors  seem  utterly 
reprehensible.  If  this  can  in  a  general  way  be 
accepted  as  trustworthy,  the  whole  procedure  in 
the  trial  is  found  to  have  been  perfectly  regular, 
and  to  have  included  everything  necessary  in  the 
way  of  formalities. 

Matthew  and  Mark  do  not  state  in  any  way 
what  the  further  accusations  against  Jesus  were, 
and  Luke  is  not  very  definite.  He  does  say,  how- 
ever, that  the  accusations  were  based  on  the 
teachings  of  Jesus :  "He  stirreth  up  the  people, 
teaching  throughout  all  Judea,  and  beginning 
from  Galilee  even  unto  this  place."30  It  is  im- 
possible to  tell  whether  the  teachings  to  which 
exception  was  taken  were  religious  or  political, 
and  this  might  be  regarded  as  proof  that  the  Jews 
were  disingenuous  in  presenting  their  case.  They 
left  it  to  be  inferred  that  the  offense  was  one  of 
which  Pilate  would  take  cognizance,  and  this 
would  imply  a  political  offense.  But  the  state- 
ment is  of  importance  only  as  an  introduction  to 
the  next  statement  made  by  Luke,  and  made  by 
Luke  alone.  "But  when  Pilate  heard  it,  he  asked 
whether  the  man  were  a  Galilean.  And  when  he 
knew  that  he  was  of  Herod's  jurisdiction,  he  sent 
him  unto  Herod,  who  himself  also  was  at  Jerusa- 

so  Lk.  XXIII,  5. 


TRIAL  IN  THE  ROMAN  COURT         263 

lem  in  these  days."31  The  conclusion  that  seems 
most  easy  from  the  passage  is  that  Jesus,  since 
he  was  of  Galilee,  should  for  that  very  reason 
be  tried  by  Herod,  who  was  governor  of  Galilee 
with  the  title  of  tetrarch. 

Those  who  hold  that  Herod  did  actually  parti- 
cipate in  the  case  think  for  the  most  part  that 
Herod,  being  a  Jewish  ruler,  was  a  co-adjutor 
of  the  guardians  of  the  Jewish  law.  There  is  no 
evidence  for  such  an  opinion  except  the  present 
passage,  and  one  other  to  which  reference  will 
be  made  later.  It  is  sometimes  said  that  the  verb 
used  by  Luke  (ai>a,7reju,7r<u)  denotes  "sent  to  a 
higher  court"  or  "referred  the  case."  If  this  we:-e 
true,  it  would  be  necessary  to  believe  that  Herod 
was  a  judicial  officer  of  higher  rank  than  Pilate, 
which  is  impossible  of  proof.  Nor  does  the  verb 
indicate  that  situation.  The  Greeks  and  the 
Romans  did  not  have  the  metaphor  involved  in 
the  modern  phrases  "higher  court,"  or  "higher 
up."  But  the  prefix  of  the  verb  (a.va-)  denotes 
higher  in  the  strictly  physical,  or  topographical, 
sense,  so  that  Pilate  sent  Jesus  to  a  higher  part 
of  the  city,  provided  the  verb  is  to  be  interpreted 
literally.  And  that  would  be  absolutely  the  case, 
if  Pilate  had  his  quarters  in  the  Antonia  and 
Herod  had  his  in  the  palace  of  the  Hasmonaeans. 

But  the  whole  episode  has  been  pronounced 
spurious  on  several  grounds,  of  which  the  only 

si  Lk.  XXIII,  6-7. 


264          THE  PROSECUTION  OF  JESUS 

important  one  for  a  legal  study  is  that  Herod  had 
no  rights  whatever  in  the  case.  A  general  prin- 
ciple of  the  Roman  law  relating  to  jurisdiction 
is  contained  in  the  section  of  Justinian's  Digest 
treating  of  the  duties  of  provincial  governors, 
where  it  is  said  that  a  governor  has  jurisdiction 
over  all  the  inhabitants  of  his  province.32  But 
this  is  immediately  modified  by  the  provision  that 
the  governor  shall  be  responsible  for  the  good 
order  of  his  territory,  and  shall  clear  the  province 
of  criminals,  from  whatsoever  place  they  origi- 
nated. Various  other  exceptions  are  made,  as 
where  it  is  said  that  if  a  slave  has  committed  an 
offense,  his  master  may  not  extradite  him,  but 
must  defend  the  slave  where  the  crime  was  com- 
mitted.33 Another  exception  is  mentioned  in  the 
case  of  a  soldier,  who  is  to  be  returned  to  his  gen- 
eral, unless  he  is  guilty  of  some  crime,  in  which 
case  he  is  to  be  punished  where  he  committed  the 
deed.34  In  three  passages  of  Justinian  a  broad 
rule  is  laid  down,  to  the  effect  that  the  prosecu- 
tion of  a  criminal  shall  take  place  where  the  crime 
has  been  committed,  or  has  been  begun.35  In  the 
case  against  Jesus  the  crime  might  be  defined  as 
continuous  sedition,  for  Jesus  is  described  as  en- 
gaged in  teaching  "beginning  from  Galilee  even 

32  Dig.  I,  18,  3. 

33  Dig.  XL VIII,  2,  7,  4. 
s*  Dig.  XLIX,  16,  3. 

.  I,  18,  3;  XLVIII,  3,  11;  Cod.  Ill,  15,  1. 


TRIAL  IN  THE  ROMAN  COURT         265 

unto  this  place."  The  case  would  then  be  heard 
where  the  arrest  occurred,  and  that  was  within 
the  province  of  Pilate. 

It  would  seem  that  Herod  had  once  tried  un- 
successfully to  arrest  Jesus  in  order  to  bring  him 
to  trial.36  But  there  is  nothing  to  show  that  this 
was  a  recent  occurrence,  or  that  Herod  was  now 
interested  in  his  prosecution.  In  Jerusalem 
Herod  had  no  power  to  try  a  case.  In  all  the 
arrangements  of  the  Romans  for  governing  their 
provinces  it  was  strictly  forbidden  that  governors 
should  perform  any  duties  beyond  their  own 
limits.  And  in  this  connection  it  should  be  pointed 
out  that  the  translation  of  the  present  passage  in 
Luke's  Gospel  may  be  misleading.  The  word 
"jurisdiction"  (e£overia)  means  simply  "power" 
or  "authority,"  but  not  in  the  technical  sense  of 
possession  of  control  over  actions  that  might  lead 
to  lawsuits.  Nor  does  it  denote  the  territory  over 
which  the  officer  presides.  Luke  uses  the  word 
in  a  peculiar  sense  which  would  be  hard  to  par- 
allel. The  one  certain  thing  about  its  meaning 
is  that  it  cannot  indicate  that  Herod  had  any 
legal  rights  over  Jesus  in  Jerusalem.  If,  then, 
Pilate  sent  Jesus  to  Herod,  he  did  it  as  a  mere 
courtesy.  One  can  imagine  that  if  a  citizen  of 
Massachusetts  were  being  tried  in  a  New  York 
court,  a  visiting  magistrate  from  Massachusetts 
might  be  asked  his  opinion  in  the  matter,  but  the 

36  Lk.  XIII,  31. 


266          THE  PROSECUTION  OF  JESUS 

opinion  would  be  taken  only  as  that  of  an  expert, 
and  not  be  accepted  as  binding  on  the  New  York 
court.  The  argument  for  the  genuineness  of  the 
episode  is  based  merely  upon  probability.  For 
some  reason  Pilate  and  Herod  had  become 
enemies,  and  Pilate  now  takes  the  opportunity 
of  becoming  reconciled  to  his  nearest  colleague. 
On  the  other  hand,  it  is  pointed  out  that  the  great 
similarity  of  the  treatment  received  by  Jesus  from 
Herod  and  Pilate,  including  the  mockery  and  the 
putting  on  of  royal  garments,  proves  that  the 
Herod  episode  was  derived  from  that  of  Pilate, 
by  a  confusion  of  tradition  as  to  the  person  who 
really  condemned  Jesus.  Whether  genuine  or 
not,  it  certainly  does  not  advance  the  story  of  the 
trial  of  Jesus  in  the  Roman  court.  It  recalls  to 
mind  the  fact  that  Paul  defended  himself  before 
Agrippa,  not  because  Festus  thought  Agrippa 
had  rights  in  the  case,  but  because  he  wished  to 
have  the  assistance  of  one  who  would  know  the 
nature  of  some  of  the  religious  offenses  with 
which  Paul  was  charged.  Instances  of  jurisdic- 
tion of  governors  over  those  of  other  provinces 
might  be  cited  from  Roman  history,  but  an  exact 
parallel  occurs  in  the  New  Testament.  When 
Paul  was  first  taken  to  Felix,  the  governor 
"asked  of  what  province  he  was;  and  when  he 
understood  that  he  was  of  Cilicia,  I  will  hear  thee 
fully,  said  he,  when  thine  accusers  also  are 
come."87 

«T  Acts,  XXIII,  34-35. 


TRIAL  IN  THE  ROMAN  COURT         267 

When  Jesus  had  been  returned  from  his  inter- 
view with  Herod,  Pilate  announced  to  the  people 
(this  also  is  found  only  in  Luke)  that  neither 
he  nor  Herod  had  found  any  fault  in  Jesus  touch- 
ing the  things  of  which  he  was  accused.38  Pilate 
added:  "I  will  therefore  chastise  him,  and  re- 
lease him."  The  fact  that  Pilate  planned  to 
chastise  Jesus  has  seemed  to  many  to  be  a  fright- 
ful illegality  and  mockery  of  justice,  for  no  inno- 
cent man  should  be  punished  in  any  manner.  But 
this  view  omits  from  consideration  the  words  of 
Pilate,  that  he  had  found  nothing  "worthy  of 
death"  in  Jesus.  The  suggestion  of  Pilate  im- 
plies a  verdict  of  guilty,  but  it  is  coupled  with 
a  great  desire  for  leniency  in  the  sentence.  The 
situation  brings  back  to  mind  the  view  of  Pilate 
expressed  earlier,  that  Jesus  should  be  forgiven, 
although  technically  guilty  of  treason.  Now, 
rinding  it  impossible  to  persuade  the  prosecutors 
that  Jesus  should  be  absolutely  unpunished,  he 
suggests  a  milder  penalty  than  death,  in  the  hope 
that  this  would  satisfy  his  enemies.  The  offer  to 
release  Jesus  after  scourging  proves  that  he  had 
been  found  guilty  of  some  other  offense  less 
serious  than  treason.  Scourging  could  never  have 
been  intended  as  the  penalty  for  treasonable  con- 
duct— nothing  less  than  death  was  ever  recog- 
nized as  adequate  for  that,  the  most  unf orgiveable 
offense  against  the  Empire.  The  Gospels  do  not 

38  Lk.  XXIII,  15. 


268          THE  PROSECUTION  OF  JESUS 

show  in  any  way  whether  this  lesser  offense  was 
connected  with  an  ecclesiastical  charge  of  false 
prophecy,  or  with  something  else.  It  has  been 
suggested  with  much  plausibility  that  the  scourg- 
ing was  not  intended  for  the  sake  of  punishment, 
but  in  order  to  elicit  information.  A  similar  thing 
took  place  later  in  the  case  of  Paul,  who  was 
threatened  with  scourging  in  the  expectation  that 
he  would  make  confession.39  If  this  explanation 
is  correct,  Luke  has  misunderstood  the  purpose 
of  the  scourging,  and  has  conceived  of  it  as  a 
penalty. 

The  next  episode,  mentioned  in  all  four  Gos- 
pels, has  frequently  been  called  spurious  by 
investigators.  It  is  the  scene  in  which  an  oppor- 
tunity is  granted  to  the  people  to  choose  whether 
Jesus  or  Barabbas  should  be  released.40  The 
chief  reason  given  for  pronouncing  it  spurious  is 
that  the  governor  had  not  the  right  to  pardon  one 
condemned  for  crime.  Other  scholars  admit  the 
narratives  as  part  of  the  authentic  records  of  the 
trial,  but  call  the  offer  and  its  acceptance  illegal. 
But  there  is  no  good  ground  for  rejecting  the 
episode,  nor  is  the  occurrence  itself  illegal.  It  is 
true  that  in  the  Roman  law  a  prisoner  could  not 
be  pardoned  after  he  had  once  been  convicted,  but 
the  Gospels  do  not  say  that  Barabbas  had  been 

so  Acts,  XXII,  24. 

« Mt.  XXVII,  15-26;   Mk.  XV,  6-11;  Lk.  XXIII,  18-20;  Jn. 
XVIII,  39-40. 


TRIAL  IN  THE  ROMAN  COURT         269 

convicted.  Mark  describes  the  condition  of 
Barabbas,  that  he  was  "bound  with  them  that  had 
made  insurrection,  men  who  in  the  insurrection 
had  committed  murder."  Matthew  calls  him 
merely  "a  notable  prisoner."  Luke  says  that  he 
was  "one  who  for  a  certain  insurrection  made  in 
the  city,  and  for  murder,  was  cast  into  prison." 
The  statement  of  Luke  might  imply  that  he  was 
in  prison  as  a  penalty  for  his  crimes.  But  that 
is  impossible,  inasmuch  as  imprisonment  was  not 
the  punishment  prescribed  for  sedition  or  insur- 
rection. The  penalty,  according  to  the  Julian 
law,  was  death,  and  Barabbas  would  immediately, 
according  to  the  Roman  custom,  have  suffered 
the  death  penalty  if  he  had  been  convicted. 

It  was  stated  above  that  the  fact  that  Pilate 
came  out  from  the  Praetorium  when  Jesus  was 
brought  to  him  could  be  taken  as  an  indication 
that  the  case  against  Jesus  was  the  first  to  come 
before  him  on  that  morning.  There  is  no  means 
of  knowing  when  Pilate  came  from  Caesarea,  or 
whether  he  had  heard  cases  in  Jerusalem  before 
that  morning.  But,  since  execution  followed  so 
close  upon  sentence,  it  is  easy  to  assume  that  the 
two  thieves  who  were  crucified  with  Jesus  had 
been  tried  and  sentenced  in  the  morning  before 
the  case  of  Jesus  came  up.  Unless  they  had  been 
convicted  late  in  the  evening  preceding,  they 
would  have  then  been  crucified.  The  same  kind 
of  argument  will  apply  to  the  case  of  Barabbas. 


270          THE  PROSECUTION  OF  JESUS 

In  addition  to  the  main  contention,  that  pardon 
would  not  have  been  legally  possible  after  con- 
viction, there  are  many  reasons  for  assuming  that 
Barabbas  had  not  yet  had  his  trial.  Pardon  in 
the  imperial  provinces  rested  only  with  the  em- 
peror,41 and  the  correspondence  of  Trajan  and 
Pliny  shows  that  the  emperor  would  not  permit 
pardons  by  a  governor  to  be  regarded  as  valid.42 
Not  long  after  the  time  of  Trajan,  this  prohibi- 
tion was  laid  down  as  a  universal  principle.43  The 
situation  on  the  morning  of  the  trial  of  Jesus  was 
that  neither  Jesus  nor  Barabbas  had  as  yet  been 
declared  guilty,  and  Barabbas  had  not  even  been 
brought  before  the  governor.  What  Pilate  ac- 
tually attempted  was  to  induce  the  prosecutors 
to  withdraw  their  suit  against  either  Jesus  or 
Barabbas.  In  the  case  of  one  arrested  for  an 
offense  like  that  of  Barabbas,  withdrawal  of  suit 
might  prove  to  be  a  popular  measure.  He  was 
no  doubt  arrested  by  Roman  officers,  but  must 
in  accordance  with  Roman  custom  be  prosecuted 
by  a  private  citizen.  It  would  not  be  difficult  to 
induce  the  prosecutor  to  withdraw  from  a  case 
which  he  found  to  be  unpopular.  Roman  law 
provided  for  the  quashing  of  an  indictment  on 
the  ground  that  the  prosecution  was  undertaken 

« 1%.  XLVIII,  23,  2;  XLVIII,  19,  27;  XLII,  1,  45,  1;  Cod. 
IX,  23,  3. 

1*2  PHny,  Ep.  X,  56;  57. 
« Dig.  XLVIII,  19,  27;  Cod.  IX,  47,  15. 


TRIAL  IN  THE  ROMAN  COURT         271 

in  haste,  or  passion,  or  to  satisfy  private  enmity, 
or  without  sufficient  evidence.  Any  one  of  these 
might  be  invoked  in  the  present  situation.  With 
this  understanding  of  the  episode  it  is  quite  possi- 
ble to  pronounce  the  passages  in  the  Gospels 
genuine,  since  they  do  not  go  contrary  to  any 
accepted  legal  principles. 

Luke  and  John  assign  no  reason  for  the  failure 
of  this  effort  on  the  part  of  Pilate  to  secure  the 
freedom  of  Jesus,  but  say  only  that  all  the  people 
demanded  the  release  of  Barabbas.44  But 
Matthew  and  Mark  assert  that  the  priests  stirred 
up  the  people  to  ask  for  the  release  of  Barabbas 
and  the  crucifixion  of  Jesus.45  It  is  altogether 
probable  that  the  detail  added  by  Matthew  and 
Mark  is  correct,  and  that  many  of  the  people 
would  not  have  demanded  the  punishment  of 
Jesus  if  the  priests  had  remained  quiet.  Possibly, 
even  as  it  was,  some  asked  that  Jesus  rather  than 
Barabbas  be  released,  but  the  voices  of  the  greater 
number  drowned  out  their  voices.  In  the  three 
synoptic  Gospels  Pilate  is  then  represented  as 
making  one  last  effort  to  rescue  Jesus.  When 
the  people  had  chosen  Barabbas  for  release, 
Pilate  asked:  "What  then  shall  I  do  unto  him 
whom  ye  call  the  King  of  the  Jews?"46  The 
answer  came  promptly  that  they  wished  Jesus 

4*Lk.  XXIII,  81;  Jn.  XVIII,  40. 

45  Mt.  XXVII,  20;  Mk.  XV,  11. 

46  Mk.  XV,  12;  cp.  Mt.  XXVII.  22;  Lk.  XXIII,  20. 


272          THE  PROSECUTION  OF  JESUS 

to  be  crucified.  Pilate  again  asked  them  what 
harm  Jesus  had  done.  It  will  be  noticed  that  he 
did  not  ask  what  crime  Jesus  had  committed.  His 
offense  against  the  law  of  treason  was  regarded 
as  evident,  and  recognized  by  all.  But  Pilate 
even  so  would  have  preferred  to  pronounce  a 
verdict  of  not  guilty,  provided  he  could  win  the 
prosecutors,  and  the  other  bystanders,  to  agree  to 
such  a  verdict.  If  he  had  the  backing  of  the  in- 
fluential Jews  of  Jerusalem,  he  would  be  willing 
to  incur  the  risk  of  giving  offense  to  the  emperor 
by  returning  a  verdict  in  accordance  with  the  in- 
tention of  the  person  who  had  offended,  rather 
than  in  accordance  with  the  letter  of  his  duty  to 
his  sovereign.  It  is  obvious  that  Pilate  believed 
Jesus  to  be  a  religious  enthusiast,  who  would  do 
no  harm  to  the  power  of  the  Romans  in  Judea, 
even  if  he  were  allowed  to  remain  free  and  un- 
hindered in  his  teaching. 

In  the  accounts  of  Mark  and  Luke  the  trial 
was  now  ended,  for  at  this  point  Pilate  pro- 
nounced sentence,  and  delivered  Jesus  to  the  sol- 
diers to  be  crucified.  But  in  the  narrative  of 
Matthew  there  is  one  further  very  dramatic  epi- 
sode. Before  Pilate  pronounced  the  sentence, 
"he  took  water,  and  washed  his  hands  before  the 
multitude,  saying,  I  am  innocent  of  the  blood  of 
this  righteous  man;  see  ye  to  it."4T  Many  at- 
tempts have  been  made  without  success  to  explain 

47  Mt.  XXVII.  24. 


TRIAL  IN  THE  ROMAN  COURT         273 

this  as  part  of  a  legal  or  religious  ceremony. 
Some  incidents  have  been  discovered  in  the  Old 
Testament  that  are  somewhat  parallel,  but  they 
are  not  quite  applicable,  nor  would  Pilate  be  likely 
to  act  in  accordance  with  a  few  ancient  Hebrew 
precedents,  which  the  Jews  did  not  themselves 
maintain.  It  may  be  said  with  equal  confidence 
that  no  parallel  can  be  discovered  in  Roman  pro- 
cedure. In  fact  it  would  be  difficult  to  find  even 
a  similar  situation.  It  must  have  happened  very 
rarely  that  a  judge  was  placed  in  the  position 
of  not  wishing  to  declare  a  verdict  or  pronounce 
sentence  when  the  evidence  was  complete,  or  when 
the  whole  court  was  convinced  that  the  person 
accused  should  be  condemned.  We  may  fairly 
say  that  the  washing  of  his  hands  was  a  piece  of 
dramatic  acting  on  the  part  of  Pilate,  invented 
by  him  on  the  spot.  It  may  possibly  have  hap- 
pened before  in  the  world,  but  it  is  unnecessary 
to  seek  precedents.  Perhaps  the  very  peculiarity 
of  the  episode  is  evidence  for  its  genuineness, 
although  reasonable  objection  has  been  taken  on 
the  ground  that  it  seems  to  rest  upon  the  unten- 
able assumption  that  Jesus  had  been  convicted  by 
the  Sanhedrin. 

A  different  addition  is  made  by  John,  even 
after  sentence  had  been  pronounced.  Jesus  was 
delivered  to  the  soldiers,  who  scourged  him, 
crowned  him  with  thorns,  put  a  purple  garment 
on  him,  and  mocked  him.  Pilate  then  brought 


274          THE  PROSECUTION  OF  JESUS 

Jesus  out  to  the  Jews,  and  said:  "Behold  the 
man!"  But  the  Jews  again  demanded  his  cruci- 
fixion, and  Pilate  told  them  to  take  Jesus  them- 
selves and  crucify  him,  for  he  could  find  no  fault 
in  him.  But  he  received  no  direct  reply  to  his 
offer,  for  the  Jews  simply  reiterated  their  de- 
mand. Pilate  went  inside  the  Praetorium  and 
questioned  Jesus,  trying  to  elicit  some  account 
of  himself.  But  Jesus  would  make  no  answer  to 
Pilate's  questions.  So  Pilate  came  out  once  more, 
and  asked  the  people  to  consent  to  the  release  of 
Jesus,  but  was  told  that  he  was  no  friend  to 
Caesar  if  he  released  Jesus.  This  frightened 
Pilate,  and  after  a  little  more  parley  he  ordered 
Jesus  to  be  crucified. 

In  this  passage  there  are  several  very  remark- 
able things,  which  induce  one  to  believe  that  it 
lacks  historical  authenticity.  In  the  first  place 
it  bears  a  striking  resemblance  to  a  passage  only 
a  little  before  it  in  the  same  Gospel,48  and  seems 
to  be  a  mere  working  over  of  the  same  material. 
In  the  second  place  the  scourging  of  Jesus  was 
a  part  of  his  penalty,  regularly  inflicted  before 
crucifixion.  But  scourging  would  not  be  inflicted 
until  sentence  had  been  pronounced.  And  if  the 
sentence  was  already  pronounced,  it  would  have 
been  impossible  for  Pilate  to  change  his  decision. 
Consequently  he  could  not  have  asked  the  Jews 
to  allow  him  to  release  Jesus.  It  has  already  been 

«  Jn.  XVIII,  30-XIX,  6. 


TRIAL  IN  THE  ROMAN  COURT          275 

shown  that  reversal  of  decision  was  the  preroga- 
tive of  the  emperor,  and  that  Pilate  would  have 
committed  a  grave  misdemeanor  in  granting  im- 
munity to  Jesus  after  having  rendered  a  verdict. 
Moreover,  it  must  be  noted  that  there  was  only 
one  penalty  for  the  offense  of  treason.  The 
Roman  criminal  law  did  not  recognize  a  maxi- 
mum and  a  minimum  penalty,  but  the  same 
penalty  was  always  imposed  for  the  same  offense. 
For  this  reason  scourging  could  not  under  any 
circumstances  be  considered  a  proper  punishment 
for  one  convicted  of  treason.  On  these  grounds 
the  whole  passage  must  be  rejected  as  spurious. 
Modern  criticism  has  labored  diligently  to  as- 
certain the  original  form  of  the  narrative  of  the 
trial  before  Pilate,  and  to  determine  the  occasion 
for  the  various  additions  assumed  to  have  been 
made  to  this  original  form.  The  most  radical 
criticism  leaves  the  following  small  section  as  the 
kernel  from  which  the  whole  of  the  accounts  in 
the  Gospels  have  been  developed: 

And  the  whole  council  held  a  consultation,  and  bound 
Jesus,  and  carried  him  away,  and  delivered  him  up  to 
Pilate.  (Based  on  Mk.  XV,  1.) 

Pilate  therefore  went  out  unto  them,  and  saith, 
"What  accusation  bring  ye  against  this  man?"  (Jn. 
XVIII,  29.) 

And  they  began  to  accuse  him,  saying,  "We  found 
this  man  perverting  our  nation,  and  forbidding  to  give 


276         THE  PROSECUTION  OF  JESUS 

tribute  to  Caesar,  and  saying  that  he  himself  is  Christ 
a  king."  (Lk.  XXIII,  2.) 

And  Pilate  asked  him,  "Art  thou  the  King  of  the 
Jews?"  And  he  answering  saith  unto  him,  "Thou 
sayest."  (Mk.  XV,  3.) 

And  Pilate,  wishing  to  content  the  multitude,  released 
unto  them  Barabbas,  and  delivered  Jesus,  when  he  had 
scourged  him,  to  be  crucified.  (Mk.  XV,  15.) 

The  first  part  of  this  seems  sound.  It  omits 
the  unnatural  impudence  of  the  Jews  toward 
their  governor,  and  the  mocking  response  of 
Pilate  to  the  Jews.  But  from  this  point  it  must 
be  regarded  as  faulty,  for  the  small  fraction  that 
is  left  is  so  disjointed,  and  so  unsatisfactory,  that 
it  could  never  have  formed  a  piece  of  narration, 
nor  could  it  have  represented  a  real  trial,  whether 
fair  or  farcical.  The  mere  confession  of  Jesus 
is  taken  as  sufficient  ground  for  the  crucifixion, 
which  would  not  for  one  moment  be  accepted  in 
any  Roman  court.  It  also  fails  to  ascribe  a  satis- 
factory motive  for  the  introduction  of  the  episode 
of  Barabbas,  and  leaves  the  process  of  setting 
him  free  quite  unnoticed.  Nor  does  it  contain 
a  hint  of  the  effort  made  by  Pilate  to  prevent  the 
conviction  and  punishment  of  Jesus,  although 
this  is  certainly  an  integral  portion  of  the  trial. 
The  episodes  of  the  hearing  by  Herod,  the  dream 
of  Pilate's  wife  and  Pilate's  washing  of  his  hands, 


TRIAL  IN  THE  ROMAN  COURT          277 

are  omitted,  but  no  objection  can  well  be  made 
to  those  omissions. 

Whatever  may  be  the  validity  of  the  other 
grounds  for  curtailing  the  narratives  of  the  trial 
to  so  great  an  extent,  a  study  of  them  from  the 
legal  standpoint  shows  clearly  that  these  far- 
reaching  radical  criticisms  are  unnecessary.  A 
more  moderate  criticism  will  assume  that  the 
course  of  trial  was  somewhat  as  follows : 

(1).  The  Sanhedrin  brought  Jesus  before 
Pilate  to  present  an  indictment  and  conduct  a 
prosecution. 

(2).  The  indictment,  containing  either  two  or 
three  clauses,  was  given  to  Pilate. 

(3).  The  prisoner  was  asked  to  plead  to  the 
charges  made  against  him. 

(4).  Jesus  attempted  to  induce  the  governor 
to  define  the  charges  before  he  submitted  his  plea. 

(5) .  Jesus  admitted  one  portion  of  the  charges, 
namely,  that  he  was  a  king. 

(6).  Evidence  was  taken  for  the  prosecution 
and  for  the  defense. 

(7).  The  governor  decided  that  Jesus  was 
guilty,  but  asked  the  prosecutors  to  withdraw  the 
charge.  They  refused  his  request. 

(8).  Pilate  endeavored  to  set  Jesus  free  by 
means  of  an  offer  to  release  one  prisoner,  and 
granted  a  choice  of  either  Jesus  or  Barabbas. 


278          THE  PROSECUTION  OF  JESUS 

(9).  The  people  chose  to  have  Barabbas  re- 
leased, so  Pilate  asked  what  penalty  for  Jesus 
would  satisfy  them.  They  demanded  his  cruci- 
fixion. 

(10).  Pilate  was  then  compelled  to  pronounce 
a  death  sentence,  and  gave  Jesus  over  to  the  sol- 
diers to  be  scourged  and  then  crucified. 


CONCLUSIONS 

I.  Date: 

The  trial  and  crucifixion  occurred  on  Friday, 
April  3,  A.  D.  33,  and  not  on  Friday,  April  7, 
A.  D.  30,  as  the  current  view  holds.  John  and 
Paul  afford  evidence  that  these  events  preceded 
passover,  and  the  arguments  contained  in  their 
writings  are  much  more  convincing  than  the  ap- 
parently contradictory  statements  in  the  synoptic 
Gospels,  that  the  passover  had  already  been  cele- 
brated when  the  arrest  took  place.  Passover  oc- 
curred on  Friday  evening  only  in  the  year  33 
during  the  period  that  could  be  included  in  the 
public  activity  of  Jesus.  John's  ministry  began 
in  28-29,  the  "fifteenth  year  of  Tiberius,"  and 
the  ministry  of  Christ  a  few  months  later.  The 
history  of  the  pardoning  of  prisoners  by  Pilate 
compels  the  acceptance  of  a  late  date  for  the  trial. 

II.  History: 

1.  The  arrest  took  place  about  midnight,  and 
was  effected  by  the  regular  police  force,  com- 
monly called  "officers  of  the  Jews,"  but  some- 
times named  "servants."  They  may  have  been 

379 


280          THE  PROSECUTION  OF  JESUS 

assisted  by  some  of  the  temple  guard,  called 
"band"  by  John,  implied  also  in  Luke's  ex- 
pression "captains  of  the  temple."  The  Romans 
were  not  concerned  in  the  arrest. 

2.  The  hearing  by  the  Sanhedrin  was  not  a 
formal  trial,  for  the  Jewish  courts  did  not  possess 
jurisdiction  in  criminal  cases  after  Judea  became 
a  Roman  province.    The  hearing  was  comparable 
to  grand  jury  proceedings,  held  for  the  purpose 
of  preparing  a  bill  to  submit  to  the  trial  court. 
The  only  trial  court  in  the  province  was  that  of 
the  Roman  governor.    There  was  but  one  hearing 
by  the  Sanhedrin,  held  on  the  morning  following 
the  arrest.     The  Sanhedrin  submitted  to  Pilate 
an  indictment  charging  Jesus  with  false  prophecy 
and  with  treason  against  the  Roman  Empire. 

3.  The  trial  in  the  Roman  court  was  a  formal 
trial,  conducted  according  to  the  usual  procedure. 
The  course  of  the  trial  can  be  satisfactorily  re- 
constructed from  a  combination  of  the  narratives 
of  the  four  Gospels,  with  some  additions  from 
the  Acts  of  Pilate.    The  governor  did  not  acquit 
Jesus  technically,  but  asserted  that  he  did  not 
display  criminal  intent.    Pilate  obviously  believed 
that  he  was  a  religious  enthusiast,  and  not  de- 
liberately a  revolutionist.     He,  therefore,  asked 
the  prosecutors  not  to  press  the  charge,  but,  fail- 
ing in  this  effort,  he  was  forced  to  pronounce 
him  guilty,  and  to  sentence  him  to  the  regular 
penalty  of  crucifixion.    The  conviction  was  based 


CONCLUSIONS  £81 

solely  upon  the  accusation  of  treason,  for  the  gov- 
ernor refused  to  investigate  the  ecclesiastical 
charge  of  heresy  or  false  prophecy. 

III.  Legality: 

1.  The  arrest  was  legal,  for  it  was  conducted 
by  the  proper  officers,  acting  under  instructions 
from  the  Sanhedrin.    There  was  no  illegality  in 
the  circumstances  under  which  the  arrest  was  ef- 
fected.   No  valid  objection  can  be  raised  because 
of  the  hour  at  which  it  occurred,  nor  because  force 
was  employed,  nor  because  of  the  expostulation 
of  Jesus.     An  arrest  was  made  when  it  would 
create  least  disturbance;  weapons  were  carried 
because  resistance  was  to  be  anticipated;  the  ex- 
postulation of  Jesus  was  directed  against  the  as- 
sumption that  he  would   offer  resistance,  not 
against  an  illegality. 

2.  The  hearing  by  the  Sanhedrin  was  legal,  for 
it  was  merely  a  preliminary  hearing,  and  was  not 
a  formal  trial.     Had  it  been  a  criminal  trial,  it 
would  have  been  illegal  owing  to  several  irregu- 
larities in  procedure;  but  an  investigation  does 
not  demand  the  application  of  the  rules  prevail- 
ing in  a  criminal  court,  and  particularly  in  a  court 
which  had  passed  out  of  existence  as  a  trial  court 
in  criminal  cases  many  years  before  this  time. 

3.  The  course  of  trial  in  the  Roman  court  was 
legal,  for  it  harmonized  with  the  procedure  shown 
in  the  sources  to  be  that  pursued  by  governors  of 


282          THE  PROSECUTION  OF  JESUS 

provinces  in  hearing  criminal  cases.  The  convic- 
tion was  legal,  and  was  justified  provided  the 
evidence  was  sufficient  to  substantiate  the  charges, 
and  the  records  do  not  prove  the  contrary.  But 
the  accounts  of  the  trial  are  so  incomplete  that 
it  cannot  be  demonstrated  whether  the  evidence 
would  be  considered  adequate  by  an  unbiased 
Roman  lawyer,  not  under  stress  of  surrounding 
excitement  and  mob  impulse. 


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Schiaparelli.  Astronomy  in  the  Old  Testament.  Ox- 
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III.  NEW  TESTAMENT  AND  THE  LIFE  OF  CHRIST 

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BIBLIOGRAPHY  289 

Briggs.     Messianic  Prophecy.    New  York,  1886. 
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290          THE  PROSECUTION  OF  JESUS 

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292  THE  PROSECUTION  OF  JESUS 

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IV.  ROMAN  EMPIBE  AND  ROMAN  LAW 

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294          THE  PROSECUTION  OF  JESUS 

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Patsch.  Bosnien  und  Herzegowina  in  romischer  Zeit. 
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New  Testament  in  Greek.    Westcott  and  Hort. 

New  Testament  in  English.  Translation  of  the  Ameri- 
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Old  Testament  in  Greek.    Swete. 

Josephus.  Antiquitates  ludaicae  and  Bellum  ludaicum. 
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Jerusalem  Talmud. 


INDEX 

(numerals  refer  to  pages) 

Acquittal  of  Jesus  by  Pilate  not  proved,  257  ff. 

Acts  of  Pilate,  supplements  Gospel  account  of  trial  before  Pilate, 
235;  evidence  offered  at  trial,  261. 

Adjuration  of  high  priest,  an  opportunity  to  the  accused  to  deny 
charges,  120;  not  an  oath,  121;  equivalent  to  an  oath  hi  sol- 
emnity, 198;  its  form  a  proof  of  sincerity  of  the  court,  199. 

Age  of  Jesus  at  beginning  of  the  ministry,  4;  64  ff. 

Alexandria,  special  method  of  administration,  142  f. 

Annas,  conversation  with  Jesus,  110;  not  an  official,  109. 

Annas  the  high  priest,  presided  at  trial  of  James,  163. 

Arrest  of  Jesus,  planned  in  advance,  70  ff.;  effected  by  police, 
84,  95;  not  effected  by  a  rabble,  77-79;  resistance  to  arrest,  80, 
82;  performed  secretly,  82;  no  Roman  soldiers  present,  85  ff., 
243;  "band"  composed  of  temple  guard,  90,  92  ff.;  legal,  97  ff.; 
"officers  of  the  Jews,"  83,  85,  91;  not  illegal  because  at  night, 
97;  use  of  weapons  not  illegal,  97;  employment  of  Judas  not 
illegal,  98. 

Arrests,  by  direction  of  Sanhedrin,  166,  167;  by  Roman  soldiers, 
169. 

"Band"  at  the  arrest,  90;  92  ff. 

Barabbas,  pardoned,  57;  pardon  legal,  268;  not  yet  tried,  269. 

Blasphemy,  denned,  213;  the  word  used  loosely,  213  f.;  not  within 
jurisdiction  of  Sanhedrin,  222;  penalty  for,  213;  Jesus  pro- 
nounced guilty,  5,  201;  Jesus  not  convicted,  209. 

Calendar  of  the  Jews,  43-48;  beginning  of  day,  44;  beginning  of 
month,  44;  beginning  of  year,  44;  date  of  passover,  44;  pass- 
over  during  the  ministry,  45  ff. 

Capital  punishment,  rare  among  the  Jews,  127;  power  to  inflict 
taken  from  the  Sanhedrin,  158. 

Capital  trials,  not  held  on  day  before  the  sabbath  or  a  feast  day, 
114;  not  held  at  night,  114. 

"Captains  of  the  temple,"  92. 

Christians,  tried  by  Pliny,  253. 

Cohorts  in  Jerusalem,  89. 

Confession  of  Jesus,  119  ff.,  199-200;  not  blasphemy,  123;  not 
sufficient  for  conviction  unless  supported  by  other  evidence, 
122  f.;  effect  on  the  court,  200;  confession  to  Pilate,  256. 

297 


298  INDEX 

Conviction  of  Jesus   by  Sanhedrin,  not  implied  in  the  Gospels, 

135;  by  Pilate,  259. 
Criminal   trials,   no  prosecuting   attorney,    182;    function   of   the 

praetor  at  Rome,  183;  of  the  governor  of  a  province,  183  f. ; 

occurred  where  crime  was  committed,  264;   attitude  of  judge 

toward  careless  prosecution,  245. 
Criticism  of  Gospel  text,  its  nature,  184  ff.;  conservative  criticism 

of  text  of  hearing  by  Sanhedrin,  186  ff. ;  of  trial  before  Pilate, 

234,  275. 

Crucifixion  of  a  Roman  citizen,  1. 
Crucifixion  of  Jesus,  day  of  week,  37;  day  of  month,  39  ff. ;  year, 

69;  the  penalty  for  treason,  232,  274. 

Defilement,  before  passover,  38. 

Delegation  of  criminal  cases  to  subordinates,  148  f. 

Ecclesiastical  law,  of  the  Jews,  33;  probably  enforced  by  the 
Sanhearin,  150. 

Egypt,  conduct  of  criminal  cases,  142  ff. ;  divided  into  three  ju- 
dicial districts,  143;  circuit  of  the  governor,  145;  libels  ad- 
dressed to  the  strategus,  147;  documents  addressed  to  the 
governor,  147,  148;  delegation  of  cases  to  subordinates,  148. 

Epistrategus,  functions,  144;  a  Roman  Knight,  144;  accompanied 
the  governor  on  circuit,  145. 

Execution  of  sentences  by  Sanhedrin,  5;  power  taken  away,  158, 
160,  161. 

Expostulation  of  Jesus  at  manner  of  arrest,  100. 

False  prophecy,  defined,  223;  Sanhedrin  had  jurisdiction  in  such 
cases,  223 ^  charged  against  Jesus,  225  ff.;  against  Stephen,  229; 
against  Paul  and  Silas,  229. 

"Fault"  means  "cause  for  accusation,"  257. 

Findings  of  the  court  presumed  to  be  correct,  10. 

Gospel  text  incomplete,  131,  132,  133;  text  of  Roman  trial  satis- 
factory, 234;  may  be  supplemented  by  Acts  of  Pilate,  235;  ac- 
count of  Roman  trial  from  radical  standpoint,  275;  more  con- 
servative form,  277. 

Governors  of  provinces,  prosecution  of,  2;  jurisdiction  of,  2,  30, 
140,  141,  145. 

Guard  at  the  tomb,  94. 

Hall  of  Hewn  Stones,  115,  159,  160,  161,  162. 

Heresy,  cases  tried  by  Sanhedrin,  154;  procedure    in    cases    of 

heresy,  224,  225. 
Herod  Antipas,  had  no  jurisdiction  in  Judea,  263,  265;  quarters 

in  palace  of  the  Hasmonaeans,  263;   early  attempt  to  arrest 

Jesus,  265;   passage  reporting  connection   with  trial  of  Jesus 

thought  spurious,  266. 
Herod  the  Great,  his  powers,  23,  25,  27. 


INDEX  (  299 

Indictment  of  Jesus,  132,  225;  was  written,  226;  similar  to  other 
known  indictments,  226;  its  form,  247;  included  political  and 
ecclesiastical  charges,  226,  228;  emphasis  different,  228  f. ;  per- 
verting the  nation,  248;  forbidding  to  pay  tribute,  249-250; 
calling  himself  a  king,  250  f. 

James,  stoned,  163. 

Jesus,  age  at  beginning  of  ministry,  64;  taken  to  the  house  of 
Annas,  109  f.;  threat  against  the  temple,  116,  190;  refusal  to 
answer  high  priest,  118  f.;  confession  before  Sanhedrin,  119  ff.; 
not  put  on  oath,  121  f. ;  refusal  to  answer  Pilate,  260;  not  ac- 
quitted by  Pilate,  25T  ff. ;  crucified  for  offense  against  the 
Roman  law,  210;  not  guilty  of  blasphemy,  213  ff.;  addressed 
as  Son  of  God,  217;  called  himself  Son  of  God,  216;  guilty  of 
false  prophecy,  225;  ecclesiastical  and  political  charges  made  in 
both  courts,  228;  penalty  for  treason,  232,  274;  admits  that  he 
is  king,  256  ff. ;  admission  was  treason,  258;  did  not  plan  re- 
bellion, 259;  probably  guilty  of  minor  offense  also,  268;  not 
pardoned,  271. 

Jews,  crucified  Christ,  260;  retained  laws  and  customs,  21,  28,  31. 

Judas,  knew  where  to  find  Jesus,  82;  employment  by  Sanhedrin 
not  illegal,  98. 

Judea,  divided  into  two  judicial  districts,  152;  toparchies  in  the 
province,  152  ff.;  not  dependent  upon  Syria,  173  ff. 

Judgment  seat  of  Pilate  in  the  open  court,  237. 

luridicus,  145. 

Jurisdiction  of  Sanhedrin,  restricted,  18;  lost  forty  years  before 
destruction  of  temple,  158;  proofs  that  jurisdiction  was  re- 
tained, 160-173;  evidence  of  New  Testament,  164-172;  case  of 
Stephen,  164-166;  Peter  and  John,  166-167;  Peter  and  other 
apostles,  167-168;  Paul,  168-172;  case  of  adultery  cited  in  the 
Talmud,  172;  case  of  Zacharias,  172. 

Jury,  in  trial  of  Jesus,  239. 

lus  gladii,  179. 

Juster,  on  jurisdiction  of  the  Sanhedrin,  160  ff. 

King,  meaning,  219,  250  ff.;  reason  for  Pilate's  question,  252  f.; 

Jesus  admits  that  he  is  king,  256  ff. 
Kingdom  of  Jesus,  255;  statement  in  Matthew  not  genuine,  256. 

Law  in  the  Roman  provinces,  9,  29,  157  f. 
"Laws"  of  the  Jews,  defined,  28,  31,  32. 
Legal  treatment  of  Jesus,  analysis,  14. 
Local  courts  in  Judea,  154  f.;  functions,  155. 

Messiah,  meaning  of  term,  219;  equivalent  to  Christ,  or  Son  of 
God,  219;  significance  of  his  coming,  220;  attitude  of  the  Sanhe- 
drin, 221. 


300  INDEX 

Ministry  of  Jesus,  date  of  beginning,  5  f. 
Mitteis-Wilcken,  on  criminal  cases  in  the  provinces,  139  ff. 
"Multitude"  at  the  arrest,  77,  79. 

"Officers  of  the  Jews,"  83,  85,  91. 

Papyri,  evidence  from,  on  conduct  of  suits  in  the  provinces,  143  ff. 

Pardon  of  prisoners,  268  ff. ;  only  the  emperor  could  pardon,  270; 
"pardon"  was  actually  the  withdrawal  of  suit,  270. 

Passover,  dates  during  the  ministry  of  Jesus,  45  ff.;  work  done 
on  that  day,  42;  defilement,  38,  236. 

Perjury,  at  trial  of  Jesus,  133;  penalty  for,  117. 

"Perverting  our  nation,"  definition,  248;  significance,  248  f. 

Peter,  not  arrested  with  Jesus,  99;  arrested  by  Sanhedrin,  167; 
second  arrest,  167;  denial  of  Christ,  205  f. 

Pilate,  hostility  of  Jewish  writers  toward,  62  f. ;  oppression,  31; 
deposed  by  Vitellius,  175;  asks  for  indictment  of  Jesus,  240; 
the  reply,  241,  243;  mocks  the  prosecutors,  244;  knowledge  of 
irregular  proceedings  by  Sanhedrin,  244;  thought  process  was 
ecclesiastical,  245;  asks  whether  Jesus  is  king,  255;  holds  Jesus 
guilty  of  treason,  259;  offers  to  scourge  Jesus,  267;  pardon  of 
prisoners,  57;  offers  to  pardon  Jesus  or  Barabbas,  268;  legality 
of  offer,  269  ff. ;  last  effort  to  save  Jesus,  271 ;  washing  of  hands, 
272;  inaccurate  episode  added  by  John,  273. 

Pliny,  trials  of  Christians,  253. 

Praetorium,  court  held  in  the  open,  236;  Jesus  present,  237-239; 
John's  account  rejected,  239. 

Preparation,  39. 

Prisoners,  pardoned  by  Pilate,  57,  59-61 ;  at  "lectisternlum,"  58  ff. 

Procedure  in  provincial  suits,  9;  evidence  recently  discovered, 
138;  unlike  that  at  Rome,  140;  Julius  Caesar,  141;  Tacitus  on 
procedure,  141;  cases  prepared  for  the  governor,  145;  delega- 
tion to  subordinate  officers,  146;  libels  addressed  to  the  strate- 
gus,  147. 

Procurator,  functions,  174-175,  178-179;  criminal  jurisdiction  not 
by  delegation,  173  ff. 

Prosecution  of  a  provincial  governor,  2. 

Quadratus,  had  special  commission  from  the  emperor,  176-177. 

Reign  of  Tiberius,  49  ff. 

Rending  of  garments,  indicative  of  excitement   or  horror,  200; 

a  proof  of  high  priest's  sincerity,  201;  Joshua  and  Caleb,  201; 

Paul  and  Barnabas,  200. 
Resistance  to  arrest  planned,  80-82. 

Sanhedrin,  possessed  of  police  powers,  149;  caused  defendant  and 
witnesses  to  appear  before  them,  149;  legal  status  corresponded 


INDEX  301 

to  that  of  strategus,  150;  probably  decided  cases  of  ecclesias- 
tical law,  150,  151;  had  criminal  jurisdiction  before  Judea  be- 
came a  province,  153;  then  lost  its  competency,  151;  existed  at 
time  of  Christ,  156  f.;  lost  power  to  inflict  capital  punishment, 
158,  160  f. ;  argument  of  Juster  on  competency,  160  ff. ;  evidence 
of  New  Testament  on  competency,  164-172;  Talmud,  172;  Jo- 
sephus,  172;  hearing  of  Jesus  only  an  investigation,  184;  prose- 
cuted Jesus  in  Roman  court,  211,  235;  did  not  convict,  211; 
did  not  punish,  212;  had  not  jurisdiction  in  cases  of  blasphemy, 
222. 

Meetings  to  consider  arrest  of  Jesus,  73  ff.;  "sought  to  kill 
him,"  73,  75;  proceedings  not  according  to  Mosaic  code,  107; 
could  not  originate  prosecutions,  108;  meeting  at  night  not  that 
of  a  committee,  111  f.;  two  meetings  necessary  to  constitute 
a  valid  trial,  113  f. ;  voting  of,  124;  unanimous  verdict  invalid, 
125;  antagonism  against  Jesus,  127;  haste  in  reaching  decisions, 
128;  announcement  of  opinion  by  high  priest  illegal,  124;  second 
meeting  in  morning,  126;  Gospel  accounts  of  hearing,  130-132; 
not  permitted  to  put  to  death,  246;  effect  of  irregular  proceed- 
ings, 245;  pronounces  Jesus  guilty  of  blasphemy,  201  ff.;  meet- 
ing at  night  not  in  Luke  or  John,  202  f.;  Mark's  account  not 
clear,  203;  present  form  of  Mark  due  to  redactor,  203;  Gospel 
account  woven  into  story  of  denial  by  Peter,  205  f.;  meeting  in 
morning  necessary,  206;  whole  account  of  proceedings,  207. 
Attitude  toward  a  Messiah,  221  f. 

Scourging,  first  suggestion  of  Pilate,  267;  scourging  impossible 
before  conviction,  273;  formed  part  of  penalty,  274. 

Silence  of  Jesus,  not  a  proof  of  illegality,  193;  impossible  in  a 
trial,  conceivable  in  an  investigation,  194;  the  verse  not  spurious, 
195;  chiastic  order  of  questions  and  answers,  195,  197. 

Simon  of  Cyrene,  42  f. 

Soldiers  in  Judea,  89. 

Son  of  God,  123;  equivalent  to  Messiah  or  Christ,  218. 

Stephen,  case  examined,  164-166;  charged  with  false  prophecy, 
229;  not  convicted,  165. 

Strategus,  native  of  the  province,  144. 

Syria,  relation  to  Judea,  175  ff. 

Tacitus,  on  suits  in  provinces,  140  f. 

Talmud,   definition  of  blasphemy,  222;   of   false   prophecy,   223; 

mentions  case  of  Jesus,  223  ff. 
Temple,   built   in    forty-six   years,    65    ff.;   threatened   by   Jesus, 

190   ff.;   allegorical  interpretation,   191;   denial  by  Mark,   191; 

form  of  threat  proposed  by  Bousset,  193. 
"Thou  sayest,"  119,  252  ff. 
Tiberius,  beginning  of  reign,  49   ff.;  colleague  of  Augustus,  52; 

duration  of  reign,  53. 
Titus,  date  of  reign,  55. 


302  INDEX 

Treason,  definition,  in  U.  S.,  231;  under  common  law,  231;  Julian 
law  of  treason,  231  f.;  penalty,  232,  274;  Jesus  guilty  in  ad- 
mission that  he  was  king,  259;  traditional  view,  6. 

Trial  of  Jesus,  day  of  week,  37;  before  passover,  39  ff.;  year,  69; 
traditional  account  of,  4  ff.;  Gospel  narratives  analyzed,  130; 
Sanhedrin  an  investigating  body,  149;  Roman  trial  the  first 
case  on  that  day,  240,  269. 

Tribute,  Jesus  forbids  payment,  249. 

Vitellius,  special  commission  from  the  emperor,  175  f. 

Washing  of  hands,  no  part  of  Roman  or  Hebrew  ceremony,  273. 

Wenger,  on  criminal  suits  in  the  provinces,  139,  140. 

"What  is  truth  "  spurious,  257. 

Witnesses,  before  Sanhedrin,  must  not  be  sought,  115;  two  neces- 
sary for  conviction,  118;  committed  perjury  against  Jesus,  116; 
not  false  on  threat  against  temple,  117;  for  defense  not  refused, 
118  f. ;  questions  asked  in  court,  133;  false  witnesses  were  not 
summoned,  188;  probably  prosecuted  for  perjury,  188;  evidence 
on  threat  against  temple,  189-193;  against  Jesus  in  Roman 
court,  260-262. 


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